272

SEPARATE OPINION OF JUDGE MAVUNGU
[Translation]

INTRODUCTION

1. The Court’s findings on the request for the indication of provisional
measures submitted by the Democratic Republic of the Congo show — if
that were needed — how complex this case is. There are those who may
not understand why the Court, principal judicial organ of the United
Nations, was not able to indicate provisional measures, including in par-
ticular measures having a military dimension!, in view of the humanitar-
ian tragedies and serious violations, both of human rights and of the
basic principles of international humanitarian law, that have been wit-
nessed on its territory’. The Court notes, moreover, that it is deeply con-
cerned by the human tragedy in the eastern provinces of the Democratic
Republic of the Congo resulting from the fighting there (paragraph 54 of
the Order).

2. Some may also not understand why the Court should have ordered
provisional measures in the “parallel case” between the Democratic
Republic of the Congo and Uganda (Armed Activities on the Territory of
the Congo (Democratic Republic of the Congo v. Uganda), Provisional
Measures, Order of 1 July 2000, I. C.J. Reports 2000, p. 111), but not in
the case at issue between the Democratic Republic of the Congo and
Rwanda. The complaints lodged against both States by the Congo are
substantially the same.

3. In its Order of 1 July 2000, the Court indicated the following
measure in particular:

“Both Parties must, forthwith, prevent and refrain from any action,
and in particular any armed action, which might prejudice the rights
of the other Party in respect of whatever judgment the Court may

' For an analysis of the issue, see Raymond Ranjeva, “La prescription par la Cour
internationale de Justice de mesures conservatoires 4 portée militaire”, in Emile Yakpo
and Tahar Boumedra (eds.), Liber Amicorum Judge Mohammed Bedjaoui, 1999, pp. 449-
459.

2 See in particular the report by Mr. Roberto Garreton, Special Rapporteur on the
human rights situation in the Democratic Republic of the Congo, presented at the 57th
session of the United Nations Human Rights Commission of 1 February 2001: tenth
report of the Secretary-General on the mission of the United Nations in the Democratic
Republic of the Congo, S/2002/169, of 15 February 2002; Security Council resolution
1417 (2002) of 14 June 2002; resolution of the European Parliament of 14 June 2002 on
the situation in the Democratic Republic of the Congo.

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ARMED ACTIVITIES (SEP. OP. MAVUNGU) 273

render in the case, or which might aggravate or extend the dispute
before the Court or make it more difficult to resolve.” (Z C.J. Reports
2000, p. 129, para. 47 (1).)

4, There is no such indication in the present case. However, the Court
did point out that, “whether or not States accept the jurisdiction of the
Court, they remain in any event responsible for acts attributable to them
that violate international law”. It further noted that the Security Council
has adopted a number of resolutions concerning the situation in the
region whereby it demanded an end to violations of human rights and of
international humanitarian law (paragraph 93 of the Order).

5. According to its established case law, the Court can only indicate
provisional measures if it has prima facie jurisdiction and if so required
by the circumstances of a given case: the degree of urgency, the protec-
tion of the rights of parties, the need to contain or not to aggravate the
dispute (see infra). In the present case, the Court did not indicate provi-
sional measures because the provisions relied on by the Applicant do not
appear to furnish a prima facie basis for its jurisdiction.

6. Whilst approving the general tenor of the Order, I can only partially
agree with its operative provisions. I believe that the Court could have
established its prima facie jurisdiction on the basis of at least two com-
promissory clauses and indicated certain provisional measures or, at the
very least, could have indicated such measures proprio motu in the light
of the deplorable hurnan tragedy, the losses of human life and the terrible
suffering in the east of the Democratic Republic of the Congo as a result
of the fighting there (paragraph 54 of the Order). My argument will be
substantiated in the following paragraphs.

7. The complexity of the case submitted to the Court stems from
several elements, and in particular the following: the prior procedural
history of the case*, the arguments raised to establish the Court’s juris-
diction*, the number of provisional measures sought and the nature of

3 The first Application instituting proceedings by the Democratic Republic of the
Congo against Rwanda was lodged on 23 June 1999, before being withdrawn on 15 Janu-
ary 2001.

4 The Democratic Republic of the Congo relied on a number of legal grounds to estab-
lish the jurisdiction of the Court: general jurisdiction (United Nations Charter, Statute of
the Court, case law of the Court); jurisdiction pursuant to specific international treaties
(International Convention on the Elimination of All Forms of Racial Discrimination,
Convention on the Prevention and Punishment of the Crime of Genocide, Convention on
the Elimination of All Forms of Discrimination against Women, the Constitution of the
World Health Organization, the Constitution of Unesco, the Convention for the Suppres-
sion of Unlawful Acts against the Safety of Civil Aviation); jurisdiction derived from the
supremacy of peremptory norms -- jus cogens — (International Bill of Human Rights,
African Charter on Human and Peoples’ Rights, Convention on the Rights of the Child,
etc.).

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ARMED ACTIVITIES (SEP. OP. MAVUNGU) 274

certain of them? and, lastly, the extent of the violations of human rights
and of the basic rules of international humanitarian law.

8. My argument will address two fundamental questions: the founda-
tion of the Court’s jurisdiction (I) and the conditions for the indication of
provisional measures (II).

I. THE FOUNDATION OF THE Court’s JURISDICTION

9. It is a general principle of international law that no State may be
brought before an international court by another State without its con-
sent’. This principle was upheld by the Washington Committee of Jurists
responsible for drafting the Statute of the International Court of Justice
when they abandoned the idea of providing therein for the automatic
compulsory jurisdiction of the Court in favour of jurisdiction being sub-
ject to the acceptance of States®. The Committee feared that the institu-
tion of automatic compulsory jurisdiction might impede the ratification
of the Charter, and indeed of the Statute, by a large number of States and
in particular by most of the major powers’. A provision for acceptance of
an optional compulsory jurisdiction clause appeared to be the most
appropriate solution: the Court’s jurisdiction is thus both optional and
compulsory '°.

10. The Court has had occasion to assert and reconfirm the principle
of State consent in a number of cases. Thus in the case concerning East
Timor (Portugal v. Australia) it stated:

“The Court recalls in this respect that one of the fundamental
principles of its Statute is that it cannot decide a dispute between
States without the consent of those States to its jurisdiction.” (C.J.
Reports 1995, p. 101, para. 26.)

11. When proceedings before the Court are instituted by means of an

5 The Democratic Republic of the Congo called for no less than 19 measures, including
some that related to the merits of the case (e.g., “fair and equitable compensation for the
damage suffered”).

$ There is a certain discrepancy between the extent of the violations of human rights
and of international humanitarian law and the narrowness of the Court’s jurisdiction to
indicate provisional measures.

7 In the same vein, see Michel Dubisson, La Cour internationale de Justice, 1964,
p. 152; Shabtai Rosenne, The Law and Practice of the International Court, 1965, p. 313.

® See Article 36, paragraph 1, of the Statute of the International Court of Justice. This
Article is essentially the same, save in certain very minor respects, as Article 36 of the
Statute of the Permanent Court of International Justice (P.C.E.J.).

? See Dubisson, op. cit., p. 145.

'0 See Article 36, paragraphs | and 2, of the Statute.

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ARMED ACTIVITIES (SEP. OP. MAVUNGU) 275

application, the latter must indicate, in addition to the parties to the dis-
pute and subject-matter, “the legal grounds upon which the jurisdiction
of the Court is said to be based” !!.

12. However, in the last resort, any question relating to the Court’s
jurisdiction must be settled by the Court itself!?:

“The Court points out that the establishment or otherwise of
jurisdiction is not a matter for the parties but for the Court itself.
Although a party seeking to assert a fact must bear the burden of
proving it (see Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction
and Admissibility, Judgment, 1. C.J. Reports 1984, p. 437, para. 101),
this has no relevance for the establishment of the Court’s jurisdic-
tion, which is a ‘question of law to be resolved in the light of the
relevant facts’ (Border and Transborder Armed Actions ( Nicaragua
v. Honduras), Jurisdiction and Admissibility, Judgment, 1.CJ.
Reports 1988, p. 76, para. 16).” (Fisheries Jurisdiction (Spain v.
Canada), Jurisdiction of the Court, Judgment, 1 C.J. Reports 1998,
p. 450, para. 37.)

13. The Democratic Republic of the Congo, in its Application insti-
tuting proceedings, its request for the indication of provisional measures
and its oral arguments at the public hearings of 13 and 14 June 2002,
submitted a number of legal grounds for the jurisdiction of the Court,
and in particular: its declaration of acceptance of the compulsory juris-
diction of the Court, and various compromissory clauses and peremptory
norms (jus cogens).

I. The Congolese Declaration of Acceptance of the Compulsory Juris-
diction of the Court

14. Article 36, paragraph 2, of the Statute provides:

“The States parties to the present Statute may at any time declare
that they recognize as compulsory ipso facto and without special
agreement, in relation to any other State accepting the same obliga-
tion, the jurisdiction of the Court in all legal disputes . , .”

15. Under this provision, commonly known as the “optional compul-

Il See Article 40, paragraph 1, of the Statute and Article 38, paragraphs | and 2, of the
Rules.

'2 Article 36, paragraph 6, of the Statute stipulates that: “In the event of a dispute as to
whether the Court has jurisdiction, the matter shall be settled by the decision of the
Court.”

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ARMED ACTIVITIES (SEP. OP. MAVUNGU) 276
sory jurisdiction clause” '*, any State party to the Statute may accept the
Court’s jurisdiction and thereby give the Court general compulsory juris-
diction over the disputes provided for in Article 36, paragraph 2, of the
Statute.

16. The above-mentioned optional clause is simply a restatement
of the clause contained in the Statute of the Permanent Court of Inter-
national Justice, which only differed in that it allowed States the
possibility of accepting the Court’s jurisdiction in either all or only certain
of the categories of legal disputes provided for in Article 36, whereas
acceptance under the Statute of the International Court of Justice covers
all such disputes.

17. The optional clause régime leaves it up to the States parties to the
Statute to choose whether or not to make such a declaration. In accord-
ance with this principle the Democratic Republic of the Congo accepted
the compulsory jurisdiction of the Court by a declaration of 8 February
1989, whose terms are as follows:

“The Executive Council of the Republic of Zaire [currently the
Government of the Democratic Republic of the Congo] recognizes
as compulsory ipso facto and without special agreement, in relation
to any other State accepting the same obligation, the jurisdiction of
the International Court of Justice in all legal disputes concerning:

(a) the interpretation of a treaty;

(b) any question of international law;

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

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

18. Whilst the declaration of acceptance of the Court’s compulsory
jurisdiction is a unilateral instrument, the declarant State nevertheless
establishes a true consensual relationship with the other States parties to
the optional clause system. The Rwandese Government has, however,
never made any optional declaration under Article 36, paragraph 2, of
the Statute. As a result, the Court’s jurisdiction cannot be founded on the
declaration by the Congolese Government. This was indeed admitted by
the Congo in oral argument:

'3 For further analysis of this issue see inter alia: Dubisson, op. cit., pp. 159 et seq.;
Edvard Hambro, “Some Observations on the Compulsory Jurisdiction of the Interna-
tional Court of Justice”, British Year Book of International Law, Vol. 25, 1948, pp. 133-
157; “The Jurisdiction of the International Court of Justice”, Recueil des cours de
l'Académie de droit international de La Have (RCADI), Vol. 76, 1950, pp. 125-215: Jean-
Pierre Quéneudec, “Les Etats africains et la compétence de la CIJ”, Annales africaines
1967, pp. 27-50; Humphrey Waldock, “Decline of the Optional Clause”, British Year
Book of International Law, Vol. 32, 1955-1956, pp. 244-287.

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ARMED ACTIVITIES (SEP. OP. MAVUNGU) 277

“The Government of the Democratic Republic of the Congo is
aware that the present case or, more precisely, that the jurisdiction
of the Court in this case, cannot be established either on the basis of
a special agreement, which does not exist here, or on acceptance of
the compulsory jurisdiction of the Court, the Republic of the Congo
having made a declaration of acceptance while Rwanda has hitherto
refrained from doing so.” (CR 2002/36, p. 32.)

19. The existence of declarations accepting the compulsory jurisdiction
of the Court between the parties to a dispute is thus indispensable in
order for the Court’s jurisdiction to be founded on such instruments.
Even then, the Court’s jurisdiction can arise only from a comparison
between the broadest declaration and the most restrictive one, with the
latter prevailing as the lowest common denominator !*. In the case con-
cerning Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), the Court based its finding of prima
facie jurisdiction on the Congolese declaration of 8 February 1989 and
on the Ugandan declaration of 3 October 1963:

“Whereas the Court considers that the declarations made by the
Parties in accordance with Article 36, paragraph 2, of the Statute con-
stitute a prima facie basis upon which its jurisdiction in the present
case might be founded.” (C.J. Reports 2000, p. 123, para. 34.)

2. The Compromissory Clauses

20. The Democratic Republic of the Congo relied on a number of
compromissory clauses for purposes of establishing the Court’s jurisdic-
tion. These clauses can be divided into three categories in the light of the
reservations submitted by Rwanda, the grounds of defence raised by the
Parties and the evolution of international law: those clauses which estab-
lish the Court’s jurisdiction, those clauses capable of establishing the
Court’s jurisdiction and those clauses incapable of establishing the Court’s
jurisdiction.

A. Clauses establishing the Court's jurisdiction

21. I consider that three treaties should be placed under this heading:
the Constitution of the World Health Organization of 22 July 1946, the
Montreal Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation of 23 September 1971 and the Convention on the
Elimination of All Forms of Discrimination against Women of 18 Decem-
ber 1979.

22. The Rwandese Government has made no reservations with respect
to the compromissory clauses providing for the jurisdiction of the Court

'4 For an analysis of the declarations by African States, see inter alia Mvumbi-di-
Ngoma Mavungu, Le règlement judiciaire des différends interétatiques en Afrique, 1992,
pp. 156 et seq.

62
ARMED ACTIVITIES (SEP. OP. MAVUNGU) 278

contained in the above-mentioned treaties. The Court’s jurisdiction was
disputed on the grounds that the prior conditions for its seisin were not
fulfilled, that there was no element of urgency, or that the Democratic
Republic of the Congo had not stipulated in its Application which rights
had been violated in the light of any particular convention.

(1) The Constitution of the World Health Organization (WHO)

23. The Constitution of the WHO of 22 July 1946 contains a compro-
missory clause which reads as follows:

“Any question or dispute concerning the interpretation or applica-
tion of this Constitution which is not settled by negotiation or by the
Health Assembly shali be referred to the International Court of Jus-
tice in conformity with the Statute of the Court, unless the parties
concerned agree on another mode of settlement.” (Art. 75.)

24, Rwanda contested the jurisdiction of the Court founded on
Article 75 of the WHO Constitution on the following grounds:

“The Congo has made no attempt to identify which provision of
the Constitution it considers to be in issue. Nor has it made any
effort to satisfy the procedural condition for seising the Court...
Article 75 confers jurisdiction on the Court if — and only if — the
dispute in question has not been settled by negotiation or by the
Health Assembly . . . The Congo has made no attempt to do so.
That being the case, Article 75 cannot afford a basis for jurisdiction
in the present case.” (CR 2002/37, p. 24.)

25. The decline in the health of the Congolese population and in medi-
cal infrastructures as a result of the war has been condemned by various
institutions, both public and private. The consequences of this situation
include: losses of human life, the widespread propagation of the HIV/
AIDS virus, the re-emergence of diseases previously eradicated (tubercu-
losis, leprosy, onchocercosis or river blindness, sleeping sickness, cholera,
etc.), and the appearance of other diseases (cretinism, etc.). The National
Vaccination Days (NVD) in the campaign against polio, which involve
some 13 million children living in Congolese territory, are often disturbed
in the areas of conflict.

26. In a report of 2001 the humanitarian organizations Oxfam, Save
the Children and Christian Aid noted the following:

“Prior to start of the conflict in 1998, available health data showed
that the existing infrastructure was already failing to deliver quality,
affordable care to the majority of the DRC’s population. The war
has made this situation even worse. Hospitals, clinics, and health
posts have been destroyed, medication cannot be delivered, and
routine vaccination programmes have been disrupted. Many people

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ARMED ACTIVITIES (SEP. OP. MAVUNGU) 279

struggle to pay for health services; some cannot afford to pay at all.
Moreover, many people now live in such difficult conditions that
they run a much greater risk of falling ill.” '5

27. In the same vein, the European Parliament, in its resolution of
14 June 2002 on the situation in the Democratic Republic of the Congo,
reported on the worsening of social conditions as a result of the continu-
ing fighting:

“Whereas the three-and-a-half year conflict in the DRC has
dramatically increased the rates of malnutrition and mortality in
that country, with 70 per cent of the people living in the war affected
areas having no access to health care or adequate food supplies.”
(Preamble, point D.)

28. These statements clearly establish a link between the situation of
conflict and the population’s worsening living conditions. It is true that
the WHO Constitution provides primarily for obligations to be fulfilled
by the organization itself'®. However, any State which becomes a Mem-
ber of the WHO has a duty not only to co-operate with the organization
to assist in fulfilling the mission assigned to it, but also to act in order to
provide the population with the best possible level of health. Any failure
to uphold the right to health is contrary to the object and purpose of the
WHO Constitution '’. It would be wrong to assert that this Constitution
does not lay down any obligations for Member States. In his dissenting
opinion in the case concerning Legality of the Use by a State of Nuclear
Weapons in Armed Conflict, Judge Weeramantry raised the issue of the
obligations of States under the WHO Constitution:

“Quite apart from their responsibilities under customary interna-
tional law and any other conventions to which they are parties, the
States that are parties to the WHO Constitution, which is itself an
international treaty, accepted certain principles and obligations.

There is thus a commitment to the attainment by all people to the
highest possible level of health, to regarding the achievement of the

'S “No End in Sight: The Human Tragedy of the Conflict in the Democratic Republic
of the Congo”, Activity Report, August 2001, p. 20; see also Garretôn, op. cit., p. 32.

'6 Article | stipulates that the objective of the WHO is “the attainment by all peoples of
the highest possible level of health”.

17 For an analysis of the right to health as a human right, see Mohammed Bedjaoui,
“Le droit à la santé, espoirs, réalités, illusions”, in Journal international de bioéthique,
Vol. 9, No. 3, 1998, pp. 33-38. Article 12 of the International Covenant on Economic,
Social and Cultural Rights, of 16 December 1966, enshrines the right to health.

64
ARMED ACTIVITIES (SEP. OP. MAVUNGU) 280

highest achievable standard of health as a fundamental right of
every person on the planet, a recognition of health as fundamental
to peace, and of the duty of State co-operation to achieve this ideal.”
(4 C.J. Reports 1996 (1), p. 146.)'8

29. The dispute between the Democratic Republic of the Congo and
Rwanda concerns the application of the WHO Constitution in the case of
alleged violations of the obligations thereunder. Article 75 lays down a
prior condition before the Court can be seised: negotiation or the inter-
vention of the Health Assembly. In oral argument, the Democratic Repub-
lic of the Congo, without providing any evidence therefor, informed the
Court of various negotiations between the two Parties with a view to
achieving a global settlement of the armed conflict on Congolese terri-
tory, including by the organization of arbitration (CR 2002/38, pp. 10-
11). Very possibly the discussions between the Congolese and Rwandan
authorities did not specifically concern the obligations of their respective
States under the WHO Constitution, but rather the upholding of human
rights and of international humanitarian law, as well as the withdrawal of
foreign troops from Congolese territory and the conditions for such with-
drawal. The allegations by the Democratic Republic of the Congo con-
cerning the violations of the right to health form part of the overall
violations of human rights and of international humanitarian law. It may
therefore be reasonably considered that the Parties attempted to settle the
dispute by negotiation |”.

30. When a jurisdiction clause provides for recourse to prior diplo-
matic negotiations, it is self-evident that the parties have to comply there-
with. This requirement is rather an obligation of conduct than of result.
In the light of the Court’s case law, it is for the Court itself to rule proprio
motu on compliance or non-compliance with that obligation. The Court
has moreover given a wide interpretation to the notion of “diplomatic
negotiations” (exchanges of views: diplomatic notes, protests, discussions
within an international organization, talks)*°.

'8 The preamble to the WHO Constitution provides:

“The health of all peoples is fundamental to the attainment of peace and security
and is dependent upon the fullest co-operation of individuals and States . . . Gov-
ernments have a responsibility for the health of their peoples.”

'9 Concerning the legal value of the principle of recourse to prior diplomatic negotia-
tions, see Georges Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour
internationale, 1967, p. 125; Paul Guggenheim, Traité de droit international public,
Vol. If, 1953, p. 148; Charles De Visscher. Aspects récents du droit procédural de la Cour
internationale de Justice, 1966, p. 86; Jacques Soubeyrol, “La négociation diplomatique,
élément du contentieux international”, Revue générale de droit international public,
Vol. 68, 1964, p. 323; Waldock, op. cit., p. 266.

0 See inter alia Right of Passage over Indian Territory, 1 C.J. Reports 1960, pp. 148-
149: South West Africa, Preliminary Objections, L.C.J. Reports 1962, pp. 344 et seg.;
Border and Transborder Armed Actions (Nicaragua v. Honduras), L.C.J. Reports 1988,
pp. 99 ef seq.

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ARMED ACTIVITIES (SEP. OP. MAVUNGU) 281

31. The attitude of each Party during the prior negotiations is crucial
in order to assess whether or not this requirement has been met:

“Negotiations do not of necessity always presuppose a more or
less lengthy series of notes and despatches; it may suffice that a dis-
cussion should have been commenced, and this discussion may have
been very short; this will be the case if a deadlock is reached, or if
finally a point is reached at which one of the Parties definitely
declares himself unable, or refuses, to give way, and there can there-
fore be no doubt that the dispute cannot be settled by diplomatic
negotiation.” (Mavrommatis Jerusalem Concessions, Judgment
No. 2, 1924, P.C.LJ., Series A, No. 2, p. 13.)

32. Article 75 of the Constitution of the WHO provides that the dis-
pute “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”. It was apparent from the Parties’ oral
pleadings that the dispute was not capable of settlement by arbitration,
nor could it be referred to the Court by a special agreement for judicial
settlement. The only remaining option was seisin of the Court by an
application instituting proceedings.

(2) The Montreal Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation

33. The Democratic Republic of the Congo also relied upon
Article 14, paragraph |, of the Montreal Convention of 1971 to establish
the jurisdiction of the Court. The compromissory clause contained in
that Article provides for prior conditions to be met before seisin of the
Court: the dispute must pertain to the interpretation or to the application
of the Convention: the parties must have attempted to settle the dispute
by means of negotiation or arbitration?!.

34, It should be observed that Rwanda has made no reservation to the
above-mentioned compromissory clause. Accordingly, two essential ele-
ments have to be considered in order to establish the jurisdiction of
the Court and to lead it to indicate one or more provisional measures on
the basis of the Montreal Convention: on the one hand, fulfilment of
the conditions precedent and, on the other, satisfaction of the conditions

21 [n the case concerning Questions of Interpretation and Application of the 197]
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United States of America), the Court refused to grant the Libyan request
for the indication of provisional measures:

“the requested provisional measures should not be indicated because Libya had not
presented a prima facie case that the provisions of the Montreal Convention pro-
vide a possible basis for jurisdiction inasmuch as the six-month period prescribed
by Article 14, paragraph |, of the Convention had not yet expired when Libya’s
Application was filed; and that Libya had not established that the United States
had refused to arbitrate” (Provisional Measures, Order of 14 April 1992, LC.
Reports 1992, p. 122, para. 25).

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ARMED ACTIVITIES (SEP. OP. MAVUNGU) 282

that govern provisional measures (urgency, the protection of the rights
of the parties and the need to avoid any aggravation of the dispute).

35. The arguments in the previous section concerning prior diplomatic
negotiations may also be applied here. In regard to arbitration, it would
appear that the Democratic Republic of the Congo met with refusal by
Rwanda, despite the proposals in this regard stated to have been made
in July 2001 (Lusaka), September 2001 (Durban), January 2002 (Blan-
tyre) and March 2002 (Lusaka). Prima facie, the dispute was not suscep-
tible of settlement by arbitration: there was or should have been no other
option than to refer it to the Court.

36. Establishment of its jurisdiction is not sufficient in itself for the
Court to indicate provisional measures. The applicant has to show, in a
given case, that the conditions governing such measures are met. Not
only did the Democratic Republic of the Congo fail “to ask the Court to
indicate any provisional measure relating to the preservation of rights
which it believes it holds under the Montreal Convention”, but in addi-
tion the disputed event dates back to 9 October 1998. The urgency which
justifies the indication of provisional measures would thus seem to have
disappeared. The occasion for consideration of the incident would be
during the examination of the merits of the case, unless the current inten-
sity of air traffic between Kinshasa and the eastern provinces, following
the signing on 19 April 2002 at Sun City of a political agreement
(between the Congolese Government, civil society, the unarmed political
opposition and the armed political opposition (with the exception of the
RCD/Goma)) justifies the indication of a preventive measure for the pro-
tection of commercial aircraft and their passengers.

37. Some clarification of the imputability of the wrongful act is called
for. The international responsibility of a State derives from the violation
of a norm and from the attribution of such violation to that State. In the
present case, the shooting-down of the Boeing 727 (belonging to the com-
pany Congo Airlines) on 9 October 1998 in Kindu (Maniema Province)
was attributed not only to Rwanda, but also to Uganda and to Burundi.
In its Memorial of 20 April 20002, Rwanda denied the Congo’s charges
on the ground that three States could not be accused of one and the same
act.

38. Since the start of the armed conflict in Congolese territory, in
August 1998, Rwanda, Uganda and Burundi have been accused by the

2? Rwanda submitted a Memorial to the Court, on 21 April 2000, after the first Appli-
cation had been lodged by the Democratic Republic of the Congo, and stated therein:

“Moreover, Rwanda notes that Congo has made identical allegations in respect of
the same incident against both Burundi and Uganda in its separate applications
against those two States.” (Memorial of the Rwandese Republic, 21 April 2000,
p. 13, para. 2.19.)

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ARMED ACTIVITIES (SEP. OP. MAVUNGU) 283

Democratic Republic of the Congo of involvement in armed activities on
its territory. It follows that, depending on the circumstances, the respon-
sibility of those States may be established either individually or collec-
tively.

(3) The Convention on the Elimination of All Forms of Discrimina-
tion against Women

39. Article 29, paragraph 1, of the Convention on the Elimination of
All Forms of Discrimination against Women of 18 December 1979 was
cited by the Democratic Republic of the Congo for the purpose of estab-
lishing the Court’s prima facie jurisdiction. The following rights are
claimed to have been impaired or nullified: the right to life, the right to
physical and mental integrity, the right to dignity, the right to health etc.
In its oral pleadings, the Democratic Republic of the Congo cited viola-
tions of human rights and of international humanitarian law of which
women had been the victims: sexual violence, systematic spread of the
AIDS virus etc. Further, 15 women were alleged to have been buried
alive at Mwenga (South Kivu Province) in November 19997.

40. All of these acts are claimed to be contrary to Article 1 of the Con-
vention, which provides that discrimination against women

“shall mean any distinction, exclusion or restriction made on the
basis of sex which has the effect or purpose of impairing or nullify-
ing the recognition, enjoyment or exercise by women . . ., on a basis
of equality between men and women, of human rights and funda-
mental freedoms in the political, economic, social, cultural, civil or
any other field”.

41. Could Article 29, paragraph |, of the Convention on Discrimina-
tion against Women apply in this case? The compromissory clause con-
tained in that Article is identical to that in Article 14, paragraph 1, of the
Montreal Convention of 1971 (see supra). Mutatis mutandis, the same
reasoning is equally applicable here.

42. However, it has to be shown that the above-mentioned allega-
tions against the Respondent are covered by the spirit and letter of the
1979 Convention. It is true that the allegations made by the Democratic
Republic of the Congo concern violations of the basic rules of interna-
tional humanitarian law, particularly in light of Article 27, paragraph 2,
of the Fourth Geneva Convention relative to the Protection of Civilian
Persons in Time of War of 12 August 194974 and Article 76, para-
graph 1, of Additional Protocol I to the Geneva Conventions relating to

23 See CR 2002/37, p. 23.

%4 Article 27, paragraph 2, provides: “Women shall be the object of special respect and
shall be protected in particular against rape, forced prostitution and any other form of
indecent assault.”

68
ARMED ACTIVITIES (SEP. OP. MAVUNGU) 284

the Protection of Victims of International Armed Conflicts of 8 June
197775,

43. It is likewise true that the Convention of 18 December 1979 was
adopted in order to provide better protection to women by prohibiting
any discrimination between men and women of whatever kind. To this
end the States parties have undertaken to “take all appropriate measures
to eliminate discrimination against women by any person, organization
or enterprise” (Art. 2 (d)).

44. Generally, the main aims of the 1979 Convention are to protect the
dignity of women and to allow them full enjoyment of their rights. On an
extensive interpretation, it may be concluded that every violation of a
right suffered by a woman by reason of being a woman would be covered
by the Convention. Here, the Applicant is not seeking to have the alleged
violations extended also to men in order that the discrimination should
cease, but to secure the cessation of violent acts allegedly committed
against women — in this case by armed groups — because they are being
targeted as women.

45. The issue of the Court’s territorial or ratione loci jurisdiction over
violations of human rights alleged to have taken place on the territory of
the Applicant and attributable to the Respondent has not been raised at
this stage of the proceedings. It is generally accepted that a State party to
a convention can incur responsibility if it commits a wrongful act con-
trary to that convention on the territory of another State party. Thus in
the case of Loizidou v. Turkey the European Court of Human Rights,
interpreting the term “jurisdiction” in Article 1 of the European Human
Rights Convention, stated the following: “the responsibility of a Con-
tracting Party may also arise when as a consequence of military action —
whether lawful or unlawful — it exercises effective contro! of an area out-
side its national territory” *°.

46. Addressing the issue of the territorial or ratione loci jurisdiction
of the African Commission on Human and Peoples’ Rights, Fatsah
Ouguergouz takes the view that:

“Neither the African Charter nor the Commission’s Rules address
this question. It is, however, implicit that the Commission can deal
with violations of human and peoples’ rights occurring on the terri-
tory of any State party to the African Charter. Nor is it excluded
that it can also deal with a violation of a human right attributable te

25 Article 76, paragraph 1, of Additional Protocol | incorporates the text of Article 27,
paragraph 2, of the Fourth Convention.

26 Cited by Vincent Berger, Jurisprudence de la Cour européenne des droits de l'homme,
2000, p. 554; see also Gérard Cohen-Jonathan, La convention européenne des droits de
l'homme, 1989, p. 94.

69
ARMED ACTIVITIES (SEP. OP. MAVUNGU) 285

a State party even if that violation took place outside the territory
subject to the latter’s jurisdiction.” 7’

47. Thus there can be no dispute as to the Court’s jurisdiction ratione
foci on account of internationally wrongful acts allegedly committed by
one State on the territory of another, even in the case of human rights
violations.

B. Provisions capable of founding the Court's jurisdiction

48. Article IX of the Convention on the Prevention and Punishment of
the Crime of Genocide of 9 December 1948 was invoked by the Demo-
cratic Republic of the Congo as a basis for the Court’s jurisdiction. That
compromissory clause reads as follows:

“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.”

49. When it became party to the 1948 Convention, Rwanda made a
reservation excluding the Court’s jurisdiction: “the Rwandese Republic
does not consider itself bound by Article IX of the Convention”. That
reservation raises a number of issues. Is it compatible with the object and
purpose of the Convention? Is the Democratic Republic of the Congo
entitled to object to Rwanda’s reservation, 27 years after the latter’s
accession to the Convention? Is the Court entitled to construe the 1948
Convention taking account of the development of international law in
this area, particularly in light of the entry into force of the Rome Statute
of the International Criminal Court of 17 July 1998?

50. The Democratic Republic of the Congo has objected to Rwanda’s
reservation on the ground that the Genocide Convention contains norms
of jus cogens: genocide is a crime under international law. The Congo
likewise considers that Rwanda, having successfully asked the Security
Council for the creation of an ad hoc international criminal court to
try and punish crimes committed on Rwandan territory in 1994, is not
entitled to take two attitudes to genocide:

“In the present case Rwanda cannot, a fortiori, reject the juris-
diction of the International Court of Justice having requested

27 La charte africaine des droits de l'homme et des peuples, 1993, p. 316. Having been
seised of a communication-complaint by the Democratic Republic of the Congo on
24 February 1999 against Burundi, Uganda and Rwanda regarding massive grave viola-
tions of human and peoples’ rights allegedly committed by the armed forces of those
countries on Congolese territory, the African Commission on Human and Peoples’ Rights
declared communication 227/99 admissible under Articles 47, 48, 49, 50, 51 of the Charter
and 97, 99 and 100 of the Rules of Procedure.

70
ARMED ACTIVITIES (SEP. OP. MAVUNGU) 286

(S/1994/1115) and procured the creation by the international
community of an ad hoc international criminal tribunal to try the
Rwandan perpetrators of genocide in 1994. To conclude otherwise
would leave beyond the scope of judicial intervention the serious
acts of genocide committed against Congolese populations and
the international community of which Rwanda stands accused.”
(CR 2002/36, p. 52.)

51. Relying on the Court’s jurisprudence in the cases concerning Legal-
ity of Use of Force ( Yugoslavia v. Spain) ( Yugoslavia v. United States of
America) 8, Rwanda rejected the argument put forward by the Demo-
cratic Republic of the Congo. It does not deny that the substantive pro-
visions prohibiting genocide have the status of jus cogens, but it contends
that the jurisdictional clause in Article IX does not have that character-
istic (see CR 2002/37, p. 16).

52. Contrary to the position under other compromissory clauses, the
only forum provided in Article IX of the 1948 Convention for the settle-
ment of any dispute relating thereto is the Court. As a result, any State
which, on becoming party to that Convention, makes a reservation to the
jurisdictional clause would escape judicial sanction in the event that its
representatives or agents should commit acts constituting the crime of
genocide.

53. It is well established that a reservation to an international treaty is
acceptable only if it is not incompatible with the object and purpose of
that treaty’. It is true, as the Court points out, that the Genocide Con-
vention does not prohibit reservations (see paragraph 72 of the Order).
But that does not mean that States may make whatever reservations they
please. Moreover, the Court stated as much in its Advisory Opinion on
Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide:

“It has nevertheless been argued that any State entitled to become
a party to the Genocide Convention may do so while making any
reservation it chooses by virtue of its sovereignty. The Court cannot
share this view. It is obvious that so extreme an application of the
idea of State sovereignty could lead to a complete disregard of the
object and purpose of the Convention.” (LC.J. Reports 1951, p. 24.)

54. The object and purpose of the 1948 Convention is, on the one

28 In those cases, the Court was unable to establish its jurisdiction, even prima facie, on
the ground that Spain and the United States had made reservations to the Article IX juris-
dictional clause (see Z C.J. Reports 1999 (II), p. 772; ibid., p. 916).

2 See Article 19 fc) of the Vienna Convention on the Law of Treaties of 23 May 1969.
On reservations, see inter alia Suzanne Bastid, Les traités dans la vie internationale. Con-
clusion et effets, 1985, pp. 71-77. Pierre-Henri Imbert, Les réserves aux traités multi-
latéraux, 1979; Daniel Kappeler, Les réserves dans les traités internationaux, 1957; José-
Maria Ruda, “Reservations to Treaties”, RCADI, Vol. 146, 1975, pp. 139-148.

71

ARMED ACTIVITIES (SEP. OP. MAVUNGU) 287

hand, to clarify the notion of genocide and, on the other, to induce States
parties to prevent any act of genocide and, in the event of failure to do
so, to punish it. The mechanism for the settlement of disputes between
States provided for by the Convention is an essential element in its appli-
cation, and thus in ensuring its respect by States parties. In this regard
Maurice Arbour notes:

“The object and purpose of the Genocide Convention is clearly
the punishment of Genocide. But can it be said that certain articles
concerning the application of the Convention, such as obligatory
recourse to the International Court of Justice in the case of disputes,
are necessarily excluded from the scope of the Convention’s object
and purpose?” *”

55. Without settling the question raised by Maurice Arbour, and
adhering to its jurisprudence on the matter, the Court stated: “that
reservation does not bear on the substance of the law, but only on the
Court’s jurisdiction; whereas it therefore does not appear contrary to the
object and purpose of the Convention” (see paragraph 72 of the Order).

56. The Court will undoubtedly have to return to this issue when it
considers the merits of the case. As principal judicial organ of the United
Nations, the Court is under a duty to make its contribution to the pun-
ishment of genocide, since this is a “crime under international law” (see
Article I of the Convention). It should be noted that Article 120 of the
Rome Statute does not allow of any reservation.

57. It would seem that the Court is in a dilemma: to declare any
reservation to the Article IX jurisdictional clause incompatible with the
object and purpose of the Convention would be to create a veritable
“revolution”. Not only would such a position represent a break with its
previous case law?!, but it could result in States parties to the Convention
which have excluded the Court’s jurisdiction by making reservations to
the jurisdictional clause denouncing the Convention under Article XIV.
A choice will have to be made.

58. The international community has endowed the Court with a key
role in the punishment of genocide. Neither negotiation nor arbitration
would be appropriate mechanisms for dealing with a dispute between
States in this regard:

“The Genocide Convention is one of the rare cases where the pos-
sibility of intervention by the International Court of Justice may be
regarded as an essential condition in order to render the Convention
effective. For the Court represents the only means of recourse against

30 Droit international public, 3rd ed., 1997, p. 89.
3! See the cases concerning Legality of Use of Force (Yugoslavia v. Spain) ( Yugo-
slavia v. United States of America), LC.J. Reports 1999 (IL), pp. 772 and 916.

72

ARMED ACTIVITIES (SEP. OP. MAVUNGU) 288

violations of a treaty the object of which is precisely to prohibit
States from committing certain acts.” *?

59. The Court’s jurisdiction will also have to be assessed in light of the
facts presented by the Applicant as constituting genocide (see CR 2002/36,
pp. 22-24, 44-48).

C. Provisions not capable of founding the Court's jurisdiction

60. Certain of the compromissory clauses cited by the Applicant can-
not, for various reasons, constitute a basis for the Court’s jurisdiction.
This is true in particular of the Constitution of Unesco (Art. XIV,
para. 2) and the Convention against Torture and Other Cruel, Inhuman
or Degrading Punishments or Treatments (Art. 30. para. 1).

(1) The Unesco Constitution

61. The Unesco Constitution of 16 November 1945 provides in
Article XIV, paragraph 2:

“Any question or dispute concerning the interpretation of this
Constitution shall be referred for determination to the International
Court of Justice or to an arbitral tribunal, as the General Confer-
ence may determine under its rules of procedure.”

62. This jurisdictional clause is confined to disputes concerning the
interpretation of the Constitution. Moreover, seisin of the Court is made
subject to special conditions. In the present case the Democratic Republic
of the Congo accuses Rwanda of hindering the exercise of the right to
education in the areas of Congolese territory which it controls. That dis-
pute concerns the actual application of the Constitution and not the
interpretation of some provision thereof*.

63. As regards the protection of human rights under Unesco, the
latter’s Executive Board has set up a Committee on Conventions and
Recommendations. The task of that Committee is to examine periodic
reports from member States on the application of conventions and
recommendations at the request of the Executive Board.

64. In its decision 104 EX/3.3 of 1978, the Executive Board gave the
Committee power to examine communications concerning the exercise of
human rights in respect of matters falling within Unesco’s competence
(the campaign against discrimination in education, for example). Such
communications can come from private individuals or from associations
which consider themselves to have been victims of a violation of human

32 Imbert, op. cit., p. 344; see also Joe Verhoeven, “Le crime de génocide. Originalité et
ambiguité”, Revue belge de droit international, 1991/1, pp. 5-26.

33 For Rwanda’s argument see CR 2002/37, pp. 18-19. See also the Court’s position in
paragraph 85 of the Order.

73
ARMED ACTIVITIES (SEP. OP. MAVUNGU) 289

rights in a field covered by Unesco’s remit. The communications must
provide relevant evidence, be submitted within a reasonable time and
show that attempts have been made to exhaust local remedies *.

(2) The Convention against Torture

65. There are a number of reports of torture and cruel, inhuman or
degrading treatment on the territory of the Democratic Republic of the
Congo as a result of the armed conflict, The right of every individual
not to be subjected to torture or to cruel treatment forms part of the
“inviolable core” of human rights which every State must respect, whether
or not it is party to the Convention against Torture. That Convention
enshrines norms of jus cogens.

66. The Democratic Republic of the Congo is party to the Convention
against Torture, whereas Rwanda is not. This raises the problem of
whether the jurisdictional clause provided for in Article 30, paragraph 1,
is opposable to the Rwandese Republic. While it is true that peremptory
norms are applicable erga omnes, a compromissory clause is not oppos-
able to a State which is not party to a convention containing that clause.
The Court’s jurisdiction has to be accepted, either generally, or specifi-
cally:

“the Court has repeatedly stated ‘that one of the fundamental prin-
ciples of its Statute is that it cannot decide a dispute between States
without the consent of those States to its jurisdiction’ (East Timor
(Portugal v. Australia), Judgment, C.J. Reports 1995, p. 101,
para. 26)” (Legality of Use of Force ( Yugoslavia v. Canada), Pro-
visional Measures, Order of 2 June 1999, LC.J. Reports 1999 (1),
p. 266, para. 19).

67. The opposability of a norm of jus cogens is one thing, the rule
regarding consent to the Court’s jurisdiction, whether under a com-
promissory clause or any other instrument, is quite another*®. It is a
well-established principle that the Court’s jurisdiction derives from the
consent of the parties *’.

Il. THE CONDITIONS FOR THE INDICATION OF PROVISIONAL MEASURES

68. The hearings at which the Parties made their oral presentations
took place at a time when the Security Council was examining a request

34 See Nicholas Valticos, “Les mécanismes internationaux de protection des droits de
l’homme”, in International Law: Achievements and Prospects, general editor Moham-
med Bedjaoui, 1991, 2 vols., Vol. 2, p. 1228.

35 See in particular Garreton, op. cit.; White Paper (4 vols.) published by the Demo-
cratic Republic of the Congo, Ministry for Human Rights, 1999-2002.

36 See East Timor { Portugal v. Australia), 1 CJ. Reports 1995, p. 102, para. 29.

7 See Ian Brownlie, Principles of Public International Law, 3rd ed., 1979, pp. 716-717.

74
ARMED ACTIVITIES (SEP. OP. MAVUNGU) 290

by the Democratic Republic of the Congo for reclassification of the man-
date of the United Nations Mission to the Congo (MONUC)"# as well as
the possibility of extending that mandate*?. Some might query the com-
patibility of two United Nations organs being seised of the same matter.
In other words, was the Court entitled to indicate provisional measures
at a time when the Security Council was considering developments in the
armed conflict in the Democratic Republic of the Congo, notably in light
of the events which occurred in Kisangani in May 2002?

69. Under Article 24 of the United Nations Charter, the Security
Council has primary responsibility for the maintenance of international
peace and security. That responsibility is only primary and not exclusive.
The other organs of the United Nations also contribute to the mainte-
nance of international peace and security, by virtue of their statutory and
implicit powers. The Court has an important role to play as principal
judicial organ of the United Nations; it is the “guardian of international
law”. In this regard, Laurence Boisson de Chazournes notes:

“The course of the history of the International Court of Justice is
marked by cases which have enabled it to contribute to the develop-
ment and consolidation of the international legal order and to estab-
lish a solid basis for its contribution to the maintenance of inter-
national peace and security.” 4°

70. Thus there was nothing to prevent the Court from indicating pro-
visional measures once the relevant conditions were satisfied. The Court’s
action is complementary to that of the Security Council in regard to the
maintenance of international peace and security: “The Council has func-
tions of a political nature assigned to it, whereas the Court exercises
purely judicial functions. Both organs can therefore perform their sepa-
rate but complementary functions with respect to the same events.” (Mili-
tary and Paramilitary Activities in and against Nicaragua ( Nicaragua v.
United States of America), Jurisdiction and Admissibility, Judgment,
LC.J. Reports 1984, pp. 434-435; Application of the Convention on the
Prevention and Punishment of the Crime of Genocide ( Bosnia and Herze-
govina v. Yugoslavia), Provisional Measures, Order of 8 April 1993,
LC.J. Reports 1993, p. 19, para. 33; Armed Activities on the Territory
of the Congo (Democratic Republic of the Congo v. Uganda), Provisional
Measures, Order of Ï July 2000, I.C.J. Reports 2000, p. 126, para. 36.)

38 The Democratic Republic of the Congo wants MONUC to become a peacekeeping
mission under Chapter VII of the Charter.

39 MONUC’s mandate was extended to 30 June 2003. See Security Council resolu-
tion 1417 (2002) of 14 June 2002.

4 “Les ordonnances en indication de mesures conservatoires dans l’affaire relative a
l'Application de la convention pour la prévention et la répression du crime de génocide
( Bosnie-Herzégovinie c. Yougoslavie)", Annuaire français de droit international, 1993,
p. 514; see also pp. 534-536.

75

ARMED ACTIVITIES (SEP. OP. MAVUNGU) 291

71. The indication of provisional measures is subject to a number of
conditions: urgency, preservation of the rights of the parties, the need not
to aggravate the dispute and prima facie establishment of the Court’s
jurisdiction.

72. In the present case the request by the Democratic Republic of the
Congo comprises 19 items (see paragraph 13 of the Order). The contrast
is striking between the scope of the measures sought and the narrowness
of the Court’s bases of jurisdiction. Thus the measures requested cover
almost every aspect of the armed conflict in the Democratic Republic of
the Congo: withdrawal of foreign troops, cessation of looting of natural
resources and other assets, respect for human rights and international
humanitarian law, restoration of the sovereignty and territorial integrity
of the Democratic Republic of the Congo, etc.*!

I. Urgency

73. When seising the Court under Article 41 of the Statute and
Article 73 of the Rules, the applicant must demonstrate the urgency
of the request for the indication of provisional measures, since its con-
sideration takes priority over all other cases. The Court is under an
obligation to decide on such a request as a matter of urgency *?.

74. The urgency of the request is a fundamental requirement in the
case of provisional measures. In the present case the Democratic Repub-
lic of the Congo seised the Court on 28 May 2002, as a result, in particu-
lar, of the events which occurred in Kisangani on 14 and 15 May 2002:

“From 14 to 15 May 2002 in Kisangani, massive grave and fla-
grant violations of human rights were committed by Rwandan troops
and by Congolese and Rwandan troops of the RCD-Goma in reprisal
for the legitimate claims of the civil population and of a small
number of uniformed individuals, who were simply calling for the
departure of Rwandan troops from Congolese territory. Numerous
independent sources, including MONUC and RHODECIC, report
over 50 persons killed and some ten wounded. Other sources indicate
that on that day several policemen and soldiers were killed in cold

41 See the various Security Council resolutions, inter alia: 1234 (1999), 1304 (2000),
1341 (2001), 1355 (2001), 1376 (2001), 1399 (2002), 1417 (2002).

42 See Article 74, paragraphs | and 2, of the Rules of Court. In the case concerning
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda}, the Court stated that “such measures are only justified if there is urgency”
(LC J. Reports 2000, p. 127, para. 39); see also LaGrand (Germany v. United States of
America), Provisional Measures, Order of 3 March 1999, LC.J. Reports 1999 (I), p. 15,
para. 22.

43 See Pierre-Marie Martin, “Renouveau des mesures conservatoires: les ordonnances
récentes de la Cour internationale de Justice”, Journal du droit international, Vol. 102,
1975, p. 51; Joe Verhoeven, Droit international publie, Law Faculty of the Université
catholique de Louvain, 2000, p. 767.

76

ARMED ACTIVITIES (SEP. OP. MAVUNGU) 292

blood, on the pretext that they had been in communication with the
rebels on account of their having belonged to the former Zairian
Armed Forces (FAZ).” “4

75. Over and above the events in Kisangani, the Democratic Republic
of the Congo in fact cited the entirety of its dispute with Rwanda since
the start of the war. Hence the difficulty of identifying the urgency of
certain measures requested of the Court.

2. Preservation of the Parties’ Rights

76. Provisional measures do not prejudge the parties’ rights on the
merits and must have as their purpose the preservation of those rights, in
order to prevent any irreparable harm. The Court has had occasion to
recall this principle in a number of cases:

“Whereas the power to indicate provisional measures which is
conferred on the Court by Article 41 of the Statute presupposes the
possibility of irreparable damage being caused to the rights at issue
in judicial proceedings and has therefore as its purpose to safeguard
the rights of each Party pending the delivery of the Court’s decision
on the merits.” (Frontier Dispute (Burkina Fasol Republic of Mali),
Provisional Measures, Order of 10 January 1986, LC.J. Reports
1986, p. 8, para. 13; see also Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda), Provisional
Measures, Order of 1 July 2000, LCJ. Reports 2000, p. 127,
para. 39.)

77. Clearly, the Democratic Republic of the Congo was seeking to
limit the irreparable, there having already been fatalities; for Rwanda,
the preservation of its rights required avoiding being imputed ab initio
with alleged massive serious violations of human rights. In its oral plead-
ings, the Respondent placed the emphasis rather on issues of the Court’s
jurisdiction (see CR 2002/37).

3. Non-aggravation of the Dispute

78. Whether or not the parties so request, the Court is entitled to indi-
cate provisional measures in order to avoid any aggravation of the dis-
pute. Any extension of the dispute may set at naught the Court’s efforts
to contribute to international peace and security by settling international
disputes by peaceful means, by applying the law. The Court thus has a
discretionary power to indicate provisional measures with a view to
restricting the scope of a dispute:

“Considering that, independently of the requests for the indication

44 Request for the indication of provisional measures, 28 May 2002, pp. 16-17.

77

ARMED ACTIVITIES (SEP. OP. MAVUNGU) 293

of provisional measures submitted by the Parties to preserve specific
rights, the Court possesses by virtue of Article 41 of the Statute the
power to indicate provisional measures with a view to preventing the
aggravation or extension of the dispute whenever it considers that
circumstances so require.” (Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Mea-
sures, Order of 15 March 1996, I C.J. Reports 1996 (I), pp. 22-23,
para. 41.)

79. The Court is bound to indicate provisional measures, or in any event
ought to do so, whenever there is a war situation or where there are serious
violations of human rights or of international humanitarian law. Thus the
Court has indicated measures having a military dimension in a number of
cases, refusing to grant them where they were not appropriate**.

4. The Court's Prima Facie Jurisdiction

80. Establishment of the Court’s jurisdiction, even prima facie, lies at
the heart of the Congo’s case. It is the essential, primary condition, from
which all the others flow. The Court refused to indicate provisional
measures because, following a consideration of the grounds of law
presented by the Applicant, it was not apparent that its jurisdiction was
established. This approach is consistent with its established case law:

“Whereas, on a request for the indication of provisional measures
the Court need not, before deciding whether or not to indicate them,
finally satisfy itself that it has Jurisdiction on the merits of the case,
but whereas it may not indicate them unless the provisions invoked
by the Applicant appear, prima facie, to afford a basis on which the
jurisdiction of the Court might be founded.” (LaGrand (Germany v.
United States of America), Provisional Measures, Order of 3 March
1999, LCJ. Reports 1999 (1), p. 13, para. 13.)*7

45 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Provisional Measures, Order of 10 May 1984, L C.J. Reports
1984, p. 169; Frontier Dispute { Burkina FasolRepublic of Mali), Provisional Measures,
Order of 10 January 1986, 1.C.J. Reports 1986, p. 554: Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia (Serbia and Montenegro) ), Provisional Measures, Order of 8 April 1993,
LC.J. Reports 1993, p. 3; Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I C.J. Reports
1996, p. 13; Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), Provisional Measures, Order of 1 July 2000, C.J. Reports 2000,
p. 111.

46 See Ranjeva, op. cit., p. 459.

47 See also Legality of Use of Force ( Yugoslavia v. Canada}, Provisional Measures,
Order of 2 June 1999, L. C.J. Reports 1999 (1), p. 266, para. 21.

78

ARMED ACTIVITIES (SEP. OP. MAVUNGU) 294

81. As I have already stated, the contrast is striking between the
provisional measures sought by the Applicant and the grounds of law
invoked to found the Court’s jurisdiction. I am of the opinion that
certain provisional measures could have been indicated, having regard to
the nature of the dispute, even if the basis of jurisdiction was a narrow
one.

(Signed) Jean-Pierrre MAVUNGU.

79


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING MARITIME DELIMITATION
AND TERRITORIAL QUESTIONS
BETWEEN QATAR AND BAHRAIN

(QATAR v. BAHRAIN)

ORDER OF 26 JUNE 1992

1992

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA DÉLIMITATION MARITIME
ET DES QUESTIONS TERRITORIALES
ENTRE LE QATAR ET BAHREÏN

(QATAR c. BAHREÏN)

ORDONNANCE DU 26 JUIN 1992
Official citation :

Maritime Delimitation and Territorial Questions
between Qatar and Bahrain, Order of 26 June 1992,
I.C.J. Reports 1992, p. 237

Mode officiel de citation :

Délimitation maritime et questions territoriales
entre le Qatar et Bahreïn, ordonnance du 26 juin 1992,
CL.J. Recueil 1992, p.237

Sales number 6 1 5
N° de vente :

ISBN 92-1-070673-0

237

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1992 1992
: 26 juin
Rôle général
26 juin 1992 n° 87

AFFAIRE DE LA DELIMITATION MARITIME
ET DES QUESTIONS TERRITORIALES
ENTRE LE QATAR ET BAHREIN

(QATAR c. BAHREIN)

ORDONNANCE

Présents: Sir Robert JENNINGS, Président; M. Opa, Vice-Président ;
MM. LaACHS, AGO, SCHWEBEL, NI, EVENSEN, TARASSOV,
GUILLAUME, SHAHABUDDEEN, AGUILAR MAWDSLEY, RANJEVA,
AJIBOLA, juges ; M. VALENCIA-OSPINA, Greffier.

La Cour internationale de Justice,
Ainsi composée,
Aprés délibéré en chambre du conseil,

Vu l’articie 48 du Statut de la Cour et les articles 31, 44 et 45, para-
graphe 2, de son Règlement,

Vu la requête enregistrée au Greffe de la Cour le 8 juillet 1991 par
laquelle Etat du Qatar a introduit une instance contre l’Etat de Bahreïn
au sujet de certains différends entre les deux Etats relatifs à la souverai-
neté sur les îles de Hawar, aux droits souverains sur les hauts-fonds de
Dibal et de Qit’at Jaradah et à la délimitation des zones maritimes entre les
deux Etats,

Vu lordonnance en date du 11 octobre 1991 par laquelle le Président de
la Cour a fixé au 10 février 1992 et au 11 juin 1992 les dates d’expiration
des délais pour le dépôt, respectivement, du mémoire de l'Etat du Qatar et

4
DELIMITATION MARITIME ET QUESTIONS TERRITORIALES (ORD. 26 VI 92) 238

du contre-mémoire de l’Etat de Bahreïn sur la question de la compétence
de la Cour pour connaître du différend et sur celle de la recevabilité de la
requête, lesquels ont été dûment déposés dans les délais fixés ;

Considérant qu’en l’espèce la présentation d’autres pièces de procé-
dure par les Parties est nécessaire;

S’étant renseignée auprès des Parties,
Prescrit la présentation d’une réplique du demandeur et d’une duplique
du défendeur sur les questions de compétence et de recevabilité;

Fixe comme suit les dates d'expiration des délais pour le dépôt de ces
pièces de procédure:

Pour la réplique de l’Etat du Qatar, le 28 septembre 1992;

Pour la duplique de l'Etat de Bahrein, le 29 décembre 1992;

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
Paix, à La Haye, le vingt-six juin mil neuf cent quatre-vingt-douze, en trois
exemplaires, dont l’un restera déposé aux archives de la Cour et les autres
seront transmis respectivement au Gouvernement du Qatar et au Gouver-
nement de Bahreïn.

Le Président,
(Signé) R. Y. JENNINGS.

Le Greffier,
(Signé) Eduardo VALENCIA-OSPINA:


                                                                                98

                            DÉCLARATION DE M. LE JUGE SKOTNIKOV

                 [Traduction]

                     1. J’ai voté en faveur des conclusions que la Cour a exposées dans le
                 dispositif de l’arrêt. Je suis toutefois en désaccord avec son raisonne
                 ment en ce qui concerne la question de l’étendue de la frontière maritime
                 convenue entre le Pérou et le Chili.
                     2. Je souscris à la conclusion de la Cour selon laquelle, avant la signa-
                  ture de l’accord de 1954 relatif à une zone frontière maritime spéciale, il
                  existait entre les Parties un accord tacite au sujet d’une frontière maritime
                  qui longeait le parallèle passant par le point où aboutissait en mer leur
                  frontière terrestre. En effet, l’existence d’un tel accord tacite est démon-
                  trée par certains éléments des proclamations de 1947 et de la déclaration
                  de Santiago de 1952. Cet accord a ensuite été cimenté sous forme de traité
                  dans l’accord de 1954 relatif à une zone frontière maritime spéciale, lequel
                  indique qu’il existait déjà entre les Parties une frontière maritime suivant
                  un parallèle (voir arrêt, par. 90 et 91).
                     3. J’admets que l’accord de 1954 relatif à une zone frontière maritime
                  spéciale, qui a consacré l’existence de cet accord tacite, a effectivement
                  laissé subsister quelque incertitude quant à la longueur exacte de la fron-
                  tière maritime (voir ibid., par. 151). Cependant, la Cour aurait pu aborder
                  cette question de la même manière que celle de savoir si la frontière mari-
                  time avait vocation générale ; elle a en effet affirmé à cet égard que
                  « [l’]accord tacite constaté par l’accord de 1954 d[eva]it être compris dans
                  le contexte des proclamations de 1947 et de la déclaration de Santiago
                  de 1952 » (ibid., par. 102). Malheureusement, elle a choisi d’examiner la
                  question de l’étendue de la frontière maritime en dehors de ce contexte.
                     4. Pour étayer sa conclusion selon laquelle la frontière maritime conve-
                  nue ne s’étend pas jusqu’à l’extrémité des zones maritimes revendiquées
                  unilatéralement au moyen des proclamations de 1947 et établies ensuite
                  dans la déclaration de Santiago de 1952, la Cour argue notamment que,
                  étant donné ce qui, dans les années 1950, était généralement considéré
                  comme acceptable sur le plan international en matière de droits en mer, il
                  est peu probable que les Parties aient envisagé que leur frontière maritime
                  s’étende sur une distance de 200 milles marins. Ce raisonnement ne me
                  semble pas convaincant. En premier lieu, les proclamations de 1947 et la
                  déclaration de Santiago de 1952 démontrent que les Parties étaient dispo-
                  sées à faire valoir des revendications maritimes qui, à l’époque, ne bénéfi-
                  ciaient pas de l’acceptation générale. En second lieu, l’établissement, au
                  début des années 1950, d’une frontière maritime entre les Parties sur une
                  distance de 200 milles marins n’aurait pu être interprété que comme un
                  accord inter partes, opposable essentiellement inter se. On voit mal pour-
                  quoi cela serait plus controversable que les revendications énoncées dans

                                                                                99

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                                   différend maritime (décl. skotnikov)                        99

                 les proclamations de 1947 et dans la déclaration de Santiago de 1952, et
                 censées instituer des zones maritimes de 200 milles marins qu’il fallait
                 défendre contre les Etats tiers.
                     5. La Cour accorde à certains éléments de la pratique des Parties
                 qu’elle a examinés dans l’arrêt, telles les activités halieutiques et les mesures
                 d’exécution, une valeur déterminante pour ce qui est de l’étendue de
                 la frontière maritime convenue. Je ne m’explique cependant pas com
                 ment l’étendue d’une frontière maritime à vocation générale pourrait être
                 déterminée par la capacité que pouvaient avoir les Parties « d’exploiter les
                  ressources de la mer et de prendre des mesures d’exécution » (arrêt,
                  par. 149) à l’époque de la signature de l’accord de 1954, lequel n’a fait que
                  reconnaître la frontière maritime existante.
                     6. Même si l’on adopte le raisonnement de la Cour, la décision de fixer
                  à 80 milles marins la distance sur laquelle s’étend la frontière maritime
                  convenue ne semble pas étayée par les éléments de preuve jugés perti-
                  nents. Ainsi, se fondant sur l’emplacement des stocks de poissons et une
                  estimation raisonnable du rayon d’action des bateaux de pêche de petite
                  taille, la Cour conclut que, au début des années 1950, les embarcations
                  péruviennes auraient pratiqué leurs activités dans un rayon de 60 milles
                  marins du principal port péruvien d’Ilo, soit une distance approximative
                  de 100 milles marins à partir du point de départ de la frontière maritime
                  (voir ibid., par. 108). Ainsi, au vu des éléments de preuve sur lesquels la
                  Cour s’appuie, la pratique des Parties en matière de pêche tend à montrer
                  que la frontière maritime convenue s’étendait sur une distance d’au moins
                  100 milles marins. Quant aux éléments de preuve relatifs à l’emplacement
                  éventuel des stocks de poissons au début des années 1950 (voir ibid.,
                  par. 105 à 107), ils ne démontrent pas de manière convaincante que la
                  frontière maritime s’étendait forcément sur 80 milles marins et non sur
                  quelque autre distance.
                     7. Quoi qu’il en soit, étant donné que les moyens présentés par les Par-
                  ties concernant l’étendue de la frontière maritime convenue ne présen-
                  taient pas toute la clarté voulue au regard de l’importance de la question,
                  j’ai pu me rallier à la majorité et voter en faveur du point 3 du dispositif.

                                                                (Signé) Leonid Skotnikov.

                                                                                100

5 CIJ1057.indb 197                                                                                1/12/14 08:59


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE AU MANDAT D’ARRET
DU 11 AVRIL 2000

(REPUBLIQUE DEMOCRATIQUE DU CONGO c. BELGIQUE)

ORDONNANCE DU 13 DECEMBRE 2000

2000

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE ARREST WARRANT
OF 11 APRIL 2000

(DEMOCRATIC REPUBLIC OF THE CONGO y. BELGIUM)

ORDER OF 13 DECEMBER 2000
Mode officiel de citation:

Mandat d'arrêt du 11 avril 2000 ( République démocratique
du Congo c. Belgique), ordonnance du 13 décembre 2000,
CLJ. Recueil 2000, p. 235

Official citation:
Arrest Warrant of 11 April 2000 (Democratic Republic

of the Congo v. Belgium), Order of 13 December 2000,
LC J. Reports 2000, p. 235

N° de vente:
ISSN 0074-4441 Sales number 804
ISBN 92-1-070903-9

13 DECEMBRE 2000

ORDONNANCE

MANDAT D’ARRET DU 11 AVRIL 2000
(REPUBLIQUE DEMOCRATIQUE DU CONGO c. BELGIQUE)

ARREST WARRANT OF I! APRIL 2000
(DEMOCRATIC REPUBLIC OF THE CONGO y. BELGIUM)

13 DECEMBER 2000

ORDER
235

INTERNATIONAL COURT OF JUSTICE

YEAR 2000

13 December 2000

CASE CONCERNING THE ARREST WARRANT
OF 11 APRIL 2000

(DEMOCRATIC REPUBLIC OF THE CONGO ». BELGIUM)

ORDER

The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court, and to
Articles 44 and 45, paragraph |, of the Rules of Court,

Having regard to the Application filed in the Registry of the Court on
17 October 2000, whereby the Democratic Republic of the Congo insti-
tuted proceedings against the Kingdom of Belgium in respect of a dispute
concerning an “international arrest warrant issued on 11 April 2000 by a
Belgian investigating judge ... against the Minister for Foreign Affairs in
office of the Democratic Republic of the Congo, Mr. Abdulaye Yerodia
Ndombasi”,

Having regard to the Order of 8 December 2000 whereby the Court
adjudicated upon the request for the indication of a provisional measure
submitted by the Democratic Republic of the Congo on 17 October 2000,
as adjusted at the hearings to take account in particular of the fact that
on 20 November 2000 Mr. Yerodia Ndombasi “had ceased to exercise
the functions of Minister for Foreign Affairs and been charged with
those of Minister of Education”;

Whereas in that Order the Court stated that “it is desirable that the
issues before the Court should be determined as soon as possible”, and
that “it is therefore appropriate to ensure that a decision on the Congo’s
Application be reached with all expedition”;

Whereas, at a meeting between the President of the Court and the

4

2000
13 December
General List
No. 121
ARREST WARRANT (ORDER 13 XII 00) 236

Agents of the Parties held on 8 December 2000, the Parties agreed that
the written pleadings in this case would comprise, in that order, a Memo-
rial of the Democratic Republic of the Congo and a Counter-Memorial
of the Kingdom of Belgium, and that those pleadings would address both
issues of jurisdiction and admissibility and the merits; and whereas at
that same meeting the Parties also agreed on the time-limits for the filing
of the said pleadings;

Taking account of the agreement of the Parties,

Fixes the following time-limits for the filing of the written pleadings:

15 March 2001 for the Memorial of the Democratic Republic of the
Congo;

31 May 2001 for the Counter-Memorial of the Kingdom of Belgium;
and

Reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this thirteenth day of December, two thou-
sand, 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 Kingdom of Belgium,
respectively.

(Signed) Gilbert GUILLAUME,
President.

(Signed) Philippe COUVREUR,
Registrar.