114

DISSENTING OPINION OF JUDGE MOSLER

Having voted against the delimitation as determined in the Judgment, I
feel bound to state the reasons which, to my regret, prevented me from
joining the majority of my colleagues. My doubts relate not only to the
result reached by the Court, but equally to the method used in arriving at it.
Since it cannot be the legitimate purpose of a separate opinion of a judge
being in the minority to offer an alternative decision, but rather to explain
why he is not able to follow the reasoning and result of the Judgment, my
remarks will concentrate only on the principal points of divergence of
views.

I

Forty years of development of international law regarding the delimi-
tation of maritime areas — sea-bed and subsoil, water column and surface
— have not yet brought about more concrete legal principles and rules on
this matter than the maxim that delimitation is to be effected in accordance
with equitable principles and taking account of all relevant circumstances,
so as to arrive at an equitable result. It is well known that the Law of the Sea
Convention has not provided detailed criteria. I welcome the explanations
given by the Court on equity and equitable principles (Judgment, paras.
45-47). These furnish a convincing description of the legal framework, but
further detailed developments must be left to the case-law, of which the
present Judgment is the fourth example in the Court’s jurisprudence — not
forgetting the arbitrations between France and Great Britain in 1977 and,
in a different geographical situation, between Guinea-Bissau and Guinea
in 1985. The judicial task is to make the law more determinable by ob-
jective criteria, and thus more predictable to potential parties. This goal
can only be achieved by selecting, in each case, such facts and circum-
stances as are relevant to the solution because they possess a close rela-
tionship to the area concerned, for the purpose of the delimitation and in
the respective interests of the parties involved. Reasons derived from
geographical situations and relationships characterizing the relevant
region are clearly to be taken account of. Facts and circumstances taken
into consideration must be as objective and intelligible as possible. It is
certainly not easy to define a precise criterion for this objectivity and
intelligibility. The nearest approximation to such a definition seems to be
that the evaluation of facts and circumstances as relevant must be likely to
persuade a neutral observer of the relationship I have referred to. It is
admitted that certain subjective elements in evaluating and balancing facts
and circumstances can hardly be excluded. But it is the duty of the Court, if

105
115 CONTINENTAL SHELF (DISS. OP. MOSLER)

it is not explicitly authorized by the parties to judge ex aequo et bono, to
reduce these elements to a minimum.

The method chosen to pursue the task and achieve a solution is of
decisive importance, if one aims at developing in each concrete case more
precise criteria relevant to a delimitation.

Il

My view differs considerably from the approach chosen by the Court.
The Court starts with a general description of the geographical context of
the dispute. It emphasizes, however, that in doing so it does not intend to
define in geographical terms the area which is relevant to the delimitation
and the area in dispute between the Parties. Nor is such a definition found
in any later part of the Judgment. The Court thus departs, without giving
the reasons for that omission, from the previous jurisprudence in similar
cases where an analogous situation existed, and where the determination of
the area relevant to the litigation was considered indispensable (Continen-
tal Shelf (Tunisia/ Libyan Arab Jamahiriya), Judgment, I. C.J. Reports 1982,
pp. 60-62, in connection with the examination of “equitable principles” ;
Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment,
LCJ. Reports 1984, pp. 268-278, in connection with the geographical
description of the area in which the delimitation was to be carried out). The
question as to which areas of the Central Mediterranean are subject to the
delimitation between the Parties is explicitly left open. It could have been
answered — and, in my view, the Court should have answered it — by an
assessment of the geographical relationship between the coasts of the
Parties. According to this criterion, the relevant area would extend to all
maritime zones lying between coasts facing each other, including those
zones in which the coasts of third States are also situated in an opposite
position.

However, I do not think that in all cases of maritime delimitation the
relevant area must be determined by notional geographic lines drawn
between the coasts the seaward extensions of which overlap each other. In
geographical conditions where the coasts of two laterally neighbouring
States are not in a concave situation no definition of relevant maritime
areas is possible. In the Gulf of Maine case the determination of the relevant
area was only partly made, namely for the Gulf region in the narrower
sense as far as the closing line of the Gulf. In the outer area extending to the
open Atlantic Ocean, no such precision was needed for the fulfilment of
the judicial task nor was it even geographically possible. The Arbitral
Judgment between Guinea and Guinea-Bissau is another example of a
coastal relationship where the determination of a relevant area was not
required.

In the present case however, where the relatively small maritime region
of the Central Mediterranean is surrounded by several bordering States

106
116 CONTINENTAL SHELF (DISS. OP. MOSLER)

being in an opposite position to each other, any attribution of areas to one
of these States presupposes that the extension of its coast toward any other
State of the region is determined. In this particular situation coastal
extensions overlap in many places, and not only with respect to the
extension of only one neighbouring State lying on the other shore. It is
obvious that difficulties arise therefrom if, as in the present case, the
Court’s jurisdiction is confined to the delimitation between two States
only, while third States have claims which extend to areas which would
otherwise appertain to the parties to the dispute alone. The shortest lines
connecting the extreme points on the Maltese islands (Ras il-Wardija and
Delimara Point) with the Libyan coast are those to Ras Ajdir in the west
and the region of Benghazi in the east. In reply to a judge’s question put in
the debates on the Application by Italy for Permission to Intervene given
after the hearings had been closed, Italy has specified, by geographical
co-ordinates, its claims to jurisdictional maritime rights in areas mainly
east of Malta but also, to a smaller extent, west of the island of Gozo, which
extend to regions lying between opposite coasts of Libya and Malta. As far
as the more important eastern part is concerned, the 15° 10’ meridian,
which runs from Cape Passero on Sicily southward to a point east of Ras
Zarruq, establishes up to the parallel of 34° 30’ N the western limit of the
Italian claim in this part of the region disputed in the present case. On the
western side of the Maltese islands Italy defined its claims by reference to
the 13° 50’ meridian. The Court, which received official notice of these
claims in the proceedings just mentioned, is debarred from pronouncing
on them. According to Article 59 of the Statute, referred to by the Judg-
ment, decisions are binding only on the parties. Furthermore, in its Judg-
ment rejecting the permission to intervene the Court explicitly pointed out
that

“The future Judgment will not merely be limited in its effects by
Article 59 of the Statute : it will be expressed, upon its face, to be
without prejudice to the rights and titles of third States.” (1. C.J.
Reports 1984, pp. 26-27, para. 43).

The consideration that the Court, as a consequence of having denied the
intervention, is without competence to deal with the Italian claims does
not, however, dispense the Court from examining the geographical rela-
tionship of the Libyan and Maltese coasts in the whole region. Without
determining this area, it is hardly possible to attribute parts of it to one or
the other Party. The Court circumvents the problem by taking the Italian
claims relating to the 13° 50’ meridian in the west and to the 15° 10’
meridian in the east as barriers where the Judgment has to stop. In doing
SO, it does not — strictly speaking — involve itself with the rights of Italy
but, on the other hand, it restricts to the area between these two meridians
suggested by Italy the jurisdiction conferred upon it by Libya and Malta in
the Special Agreement. Moreover, the Court refers, even in the operative
part of the Judgment, to a point on the 15° 10’ meridian from which the
delimitation line is measured.

107
117 CONTINENTAL SHELF (DISS. OP. MOSLER)

I fail to see for what reason the information given by a third State to the
Court on its claims regarding maritime zones also claimed by one or both
parties to a pending dispute is taken as a fact restricting the Court’s
jurisdiction and as a technical means to indicate the direction of the
delimitation line. It does not matter whether the claim of the third State is
prima facie not unreasonable, or that the parties did not comment on the
claims. These points were not among the factual and legal questions
involved in the dispute. The competence of the Court to decide on the
delimitation of the area lying between the coasts of the parties cannot
depend on the pretensions of a third State brought to the Court’s notice.
On the contrary, the Court, in my view, has no power to take into account a
line which it is not even entitled to examine. The legitimate goal of not
prejudicing Italy’s rights must not have the effect that not the whole of the
case of the Parties is decided. The actual difficulties originate in the
rejection of the Italian request to intervene. I do not criticize that Judgment
(in which I did not take part), but take it as a fact. However, I think that its
consequences cannot be — if not in law but in fact — corrected in the
present phase of the proceedings.

Ill

Based on the uncertain ground of a non-defined area, the Judgment
cannot avoid defining any area whatever of relevance to the decision. A
definition was needed when the Judgment arrived at the point where the
proportion between the areas attributed to Libya and Malta, respectively,
had to be taken into account. The area established for this purpose is
defined by the coastlines of the Maltese islands — from Ras il-Wardija on
the island of Gozo to Delimara Point on the island of Malta — and those of
Libya, from the Tunisian frontier at Ras Ajdir to Ras Zarrugq, a point near
the 15° 10’ meridian. The purpose is to have points of reference on Malta
and Libya in order to measure — at least in a very global manner — the
proportion of the areas north and south of the delimitation line. These
coastlines do not, however, dominate even the whole of the area delimited
by the Judgment ; this area includes, east of the line Delimara Point-Ras
Zarruq, a zone extending on its eastern side to the 15° 10’ meridian, which
the Court considers as the eastern limit of the delimitation. This zone is not
confined by any plausible northern boundary — the reason being that the
Court made no attempt to define the entirety of the relevant coasts, which
comprise, in my view, all the coastlines of the Parties facing each other (see
IV below). For this reason, the Judgment cannot take account of this zone
in considering the circumstances relevant to proportionality. The proposal
of Libya to draw a line due east from Delimara Point, which at its inter-
section with the 15° 10’ meridian could form the northern closing boun-
dary of this zone, has no justification in law and, moreover, is not men-
tioned in the Judgment. If one maintains, as does the Court, that the

108
118 CONTINENTAL SHELF (DISS. OP. MOSLER)

lengths of the coasts are a relevant circumstance for the calculation of
proportionality, one must take account of more than merely a part of
Libya’s coast lying opposite to Maita.

IV

In seeking to determine the whole area involved, including those parts
which may be claimed by third States, one must begin with the definition
contained in the Judgment in the Tunisia/Libya case, when the Court
said :

“The coast of each of the Parties, therefore, constitutes the starting
line from which one has to set out in order to ascertain how far the
submarine areas appertaining to each of them extend in a seaward
direction, as well as in relation to neighbouring States situated either
in an adjacent or opposite position.” (.C.J. Reports 1982, p. 61, para.
74.)

While one can follow the concurring views of the Parties as far as the
western limit is concerned (Ras il-Wardija to Ras Ajdir), another solution
must be found in the east, which does not correspond to the proposals of
either Party. The Libyan proposal includes certain regions in the Escarp-
ment-Fault Zone which certainly fall outside any opposite situation of the
coasts of the Parties, while the Maltese geometric construction of a tra-
pezium (Fig. 7 of Malta’s oral presentation) also includes regions not lying
between coasts facing each other. However, Malta is right in arguing that it
follows from its geographical situation as an island State that submarine
areas adjacent to its coast extend in all directions and are, therefore,
relevant to the delimitation of these areas with regard to any opposite
State. Consequently, the whole coast of Malta from Ras il-Wardija to
Delimara Point is to be taken into account with regard to the Libyan coast.
The final eastern stretch of the Libyan coast facing the southeastern coast
of Malta is the region of the city of Benghazi. Obviously, this large area is,
to a considerable extent, overlapped by justifiable claims of Italy.

In order to exercise its jurisdiction to the fullest extent possible and, at
the same time, not to prejudice rights which may be claimed by third
States, the Court can define the principles, rules and methods for drawing
the delimitation line between Libya and Malta. In doing so it must make a
reservation that the definitive attribution of areas in which claims of third
States overlap with those of the Parties must await either an agreement
between the interested States or a judicial decision according to law. It can
either content itself with the precise indication of principles, rules and
methods to be applied or, in addition, draw a delimiting line in the safe
area, where it is known that no other claims are to be expected, and mark
both ends with arrows in the direction in which the line should continue.
This is the method followed by the Court in the Tunisia/ Libya case, when it

109
119 CONTINENTAL SHELF (DISS. OP. MOSLER)

reserved the rights which Malta may have in the area relevant to the
delimitation between Libya and Tunisia.

V

I share the conclusions of the Court that no fundamental discontinuity
— as alleged by Libya — interrupts the sea-bed between the Parties and
that, even were it to exist, it would be irrelevant because the principle
enunciated in the second part of Article 76, paragraph 1, of the Law of the
Sea Convention, according to which a coastal State is entitled to conti-
nental shelf rights within a distance of 200 nautical miles, forms part of
general international law binding on the Parties.

As the Court emphasizes, in accordance with its previous jurisprudence,
there is no single method to be applied in the delimitation of submarine
areas. For the purpose of applying the law in a given situation, the
appropriate method will vary according to the particular features of each
case. Although the law applicable to delimitations does not give prefer-
ence, in abstracto, to one method or another, a relationship certainly exists
between the principles and rules applicable in a given dispute and the
method or choice of methods resulting from the determination of the
principles and rules applicable in a concrete case. The determination of the
method is therefore indicated by the applicable principles and rules, even
when the choice of one method does not logically or necessarily follow
from the definition of the principles and rules. If the principles and rules
can be carried into effect by more than one method, the choice between
them is a matter of judicial propriety.

The rule of equity requires equal treatment of the Parties. In disputes
concerning territorial boundaries, including submarine areas, equal treat-
ment does not necessarily mean the.attribution of equal shares. A delimi-
tation according to equal areas on either side is in conformity with the rule
of equity only in so far as the relevant criteria and circumstances in their
totality in fact indicate this result. If this is the situation in a given case, the
equidistance method suggests itself as the technical means which is first to
be applied. If this method fails in the particular facts and circumstances of
the case, it must be supplemented or even replaced by another method.

The Parties agree that, in accordance with the continuous jurisprudence
of the Court since the North Sea Continental Shelf Judgment, equidistance
is not a principle imposed by law, but a method to be applied if called for
by the particular facts of the case. The equitable character of an equidis-
tance line is, however, more manifest between opposite States than
between laterally adjacent States.

When the Court stated in 1969 that equidistance was not a principle. it

110
120 CONTINENTAL SHELF (DISS. OP. MOSLER)

drew attention to the different situation of lateral and opposite delimita-
tions ; recalling the difficulties experienced in the International Law
Commission in drafting the Convention on the Continental Shelf, it
observed :

“The continental shelf area off, and dividing, opposite States, can
be claimed by each of them to be a natural prolongation of its terri-
tory. These prolongations meet and overlap, and can therefore only be
delimited by means of a median line ; and, ignoring the presence of
islets, rocks and minor coastal projections, the disproportionally dis-
torting effect of which can be eliminated by other means, such a line
must effect an equal division of the particular area involved.” (I.C.J/.
Reports 1969, p. 36, para. 57.)

According to this Judgment, the areas in which the conflicting claims of
coastal States overlap shall be equally divided. Since in the present case the
distance from the opposite coasts generates the title, a median line between
the coasts of the Parties suggests itself as the principal consideration for
arriving at an equitable result. The first step of the delimitation process is
therefore to draw a median line between the baselines of the Parties. With
regard to this point I am able to agree with the delimitation method of the
Judgment.

VI

The question remains, however, whether this line is equitable without
further adjustment or whether a transposition is needed because of facts or
circumstances which have to be taken into account. Since the median line is
the normal method of arriving at an equitable result in the division of areas
between opposite coasts, this line should be considered not only as the first
step in the delimitation process but also, as a rule, as its final result.
Admittedly, there may be particular circumstances requiring a correction.
Anomalies in one or the other coastline may exercise such an influence on
the course of the line that an adjustment is needed. If one discards, with the
Judgment, the Rock of Filfla in front of the Maltese coast, there is no other
factor which, by reason of an unusual configuration of the coasts, calls for
a correction of the median line.

I do not exclude the possibility that, in certain cases, there may be
particular geographical circumstances which make a median line inequi-
table. But such circumstances must be eligible to be taken into account on
the basis of calculable criteria, not on the basis of unspecified impressions
of equitableness.

111
12] CONTINENTAL SHELF (DISS. OP. MOSLER)

The Judgment arrives at an overall shift of 18’ northwards from the
median line, which surprisingly — as I have already emphasized — is
calculated on the 15° 10’ meridian. This transposition is justified by a
comparison of the lengths of the respective coasts and by the general
macro-geographic situation and the special position of the Maltese islands
in the Central Mediterranean.

I fail to see how either of these circumstances can provide criteria which
can be used to calculate results.

Taking first the comparison of the lengths of the coasts, one has to bear
in mind that the respective lengths are already reflected by the proportions
between the two zones separated by the median line. The northern part of
the delimited area is considerably smalier than the southern part because
of the much shorter coast of the Maltese islands and the much longer
extension of the Libyan coast. This whole area forms almost a triangle, its
vertex formed by the Maltese islands and its baseline by the Libyan coast.
The disproportion between the coastlines is even greater than Libya
asserts, and the Judgment confirms, because the coast east of Ras Zarruq
to the point near Benghazi — which lies in an opposite position to Delimara
Point — is excluded from consideration as part of the relevant area, con-
trary to my view expressed in IV above. On the other hand, in making a
comparison of all the coastlines as a relevant circumstance requiring cor-
rection of the median line in favour of Libya, one must take account of the
fact that the larger part of the entire relevant area (including the seaward
extension of the Libyan coast east of Ras Zarruq) is subject to a delimi-
tation to be effected later with Italy. For this reason I do not think that the
lengths of the coasts of the Parties may be treated as a relevant circum-
stance in the sense in which the Court in 1982, and its Chamber in 1984,
used this criterion as a qualifying element for the final determination of the
delimiting line.

The second circumstance which has been examined to justify the result
of the Judgment is the geographic position of the small Maltese islands in
the relatively limited, semi-enclosed area of the Central Mediterranean,
which is surrounded by a number of States with opposite coasts and
consequent conflicting claims. It is however hardly possible to find a
reasonable method of evaluating this circumstance in the present case,
deriving from it some method of calculation to reduce, on the basis of this
geographical relationship, the area attributed to Malta. To my regret, I
cannot agree with the Court’s assessment of this circumstance as one which
is relevant in the present case.

The Judgment rightly rejects the idea that a comparison of the landmass
of States can form any criterion to be respected in arriving at an equitable
delimitation. This statement certainly reflects the development of the law
of the sea in this respect ; its consequences should not be diminished, as
they are to some extent, by a reference to the geographic position of a small
group of islands in the midst of surrounding coastal States. This is certainly
not the Court’s intention, but I am afraid that the extent of the 18’

112
122 CONTINENTAL SHELF (DISS. OP. MOSLER)

northward transposition of the median line can be misunderstood in that

sense.
My conclusion is therefore that there is no convincing reason to depart

from the median line, which I think is the equitable solution of the dispute
in the circumstances of the case.

(Signed) Hermann MOSLER.

113


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
KASIKILI/SEDUDU ISLAND

(BOTSWANA/NAMIBIA)

ORDER OF 27 FEBRUARY 1998

1998

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE
DE L'ÎLE DE KASIKILI/SEDUDU

(BOTSWANA/NAMIBIE)

ORDONNANCE DU 27 FEVRIER 1998
Official citation:

Kasikili/Sedudu Island (Botswana/Namibia),

Order of 27 February 1998, I.C.J. Reports 1998, p. 6

Mode officiel de citation:

Ile de Kasikili/Sedudu ( Botswana/Namibie),
ordonnance du 27 février 1998, CI.J. Recueil 1998, p. 6

ISSN 0074-4441
ISBN 92-1-070760-5

Sales number
N° de vente:

697

1998
27 February
General List
No. 98

INTERNATIONAL COURT OF JUSTICE
YEAR 1998

27 February 1998

CASE CONCERNING
KASIKILI/SEDUDU ISLAND

(BOTSWANA/NAMIBIA)

ORDER

Present: President SCHWEBEL; Vice-President WEERAMANTRY ; Judges ODA,
BEDJAOUI, GUILLAUME, RANJEVA, HERCZEGH, SHI, FLEISCH-
HAUER, KOROMA, VERESHCHETIN, HIGGINS, PARRA-ARANGUREN,
KoOoïMANS; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Article 48 of the Statute of the Court and to Ar-
ticles 44 and 46 of the Rules of Court,

Having regard to the Special Agreement between the Republic of Bot-
swana and the Republic of Namibia, signed at Gaborone on 15 February
1996 and notified jointly to the Court on 29 May 1996, whereby the
Parties submitted to the Court the dispute between them concerning the
boundary around Kasikili/Sedudu Island and the legal status of the
island,

Having regard to the Order of the Court dated 24 June 1996, fixing
28 February 1997 as the time-limit for the filing of a Memorial by each of
the Parties and 28 November 1997 as the time-limit for the filing of a
Counter-Memorial by each of the Parties, and reserving the subsequent
procedure for further decision;

4
7 KASIKILI/SEDUDU ISLAND (ORDER 27 ITI 98)

Whereas the Memorials and Counter-Memorials of the Parties were
duly filed within the time-limits thus fixed;

Whereas in Article IT, paragraph 2 fc), of the Special Agreement, the
Parties agreed that the written pleadings in the case should include, in
addition to the Memorials and Counter-Memorials, “such other .. .
pleadings as may be approved by the Court at the request of either of the
Parties, or as may be directed by the Court”;

Whereas in a joint letter dated 16 February 1998 the Agents of the
Parties notified the Court that their Governments had “jointly decided
to request further written pleadings pursuant to Article II (2) (c) of
the Special Agreement”, those pleadings to be filed by 27 November
1998;

Taking into account the agreement between the Parties,

Fixes 27 November 1998 as the time-limit for the filing of a Reply by
each of the Parties; and

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twenty-seventh day of February, one
thousand nine hundred and ninety-eight, in three copies, one of which
will be placed in the archives of the Court and the others transmitted to
the Government of the Republic of Botswana and the Government of the
Republic of Namibia, respectively.

(Signed) Stephen M. SCHWEBEL,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DES ACTIVITES ARMEES
SUR LE TERRITOIRE DU CONGO

(REPUBLIQUE DEMOCRATIQUE DU CONGO c. OUGANDA)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

ORDONNANCE DU 1°® JUILLET 2000

2000

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING ARMED ACTIVITIES
ON THE TERRITORY OF THE CONGO

(DEMOCRATIC REPUBLIC OF THE CONGO vy. UGANDA)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER OF 1 JULY 2000
Mode officiel de citation:

Activités armées sur le territoire du Congo (République
démocratique du Congo c. Ouganda), mesures conservatoires,
ordonnance du 1°” juillet 2000, C.1.J. Recueil 2000, p. 111

Official citation:

Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Provisional Measures,
Order of I July 2000, L C.J. Reports 2000, p. 111

N° de vente:
ISSN 0074-4441 Sales number 780

ISBN 92-1-070854-7

IFR JUILLET 2000

ORDONNANCE

ACTIVITES ARMEES
SUR LE TERRITOIRE DU CONGO

(REPUBLIQUE DEMOCRATIQUE DU CONGO c. OUGANDA)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

ARMED ACTIVITIES
ON THE TERRITORY OF THE CONGO

(DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

1 JULY 2000

ORDER
111

INTERNATIONAL COURT OF JUSTICE

YEAR 2000 2000
1 July
General List
1 July 2000 No. 116

CASE CONCERNING ARMED ACTIVITIES
ON THE TERRITORY OF THE CONGO

(DEMOCRATIC REPUBLIC OF THE CONGO ». UGANDA)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER

Present: President GUILLAUME; Judges ODA, BEDJAOUI, RANJEVA,
HERCZEGH, FLEISCHHAUER, KOROMA, VERESHCHETIN, HIGGINS,
PARRA-ARANGUREN, KOONMANS, REZEK, AL-KHASAWNEH,
BUERGENTHAL; Registrar COUVREUR.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court and to
Articles 73, 74 and 75 of the Rules of Court,

Makes the following Order:

1. Whereas, by an Application filed in the Registry of the Court on
23 June 1999, the Democratic Republic of the Congo (hereinafter “the
Congo”) instituted proceedings against the Republic of Uganda (herein-
after “Uganda”) in respect of a dispute concerning “acts of armed aggres-
sion perpetrated by Uganda on the territory of the Democratic Republic
of the Congo, in flagrant violation of the United Nations Charter and of
the Charter of the Organization of African Unity”;
ARMED ACTIVITIES (ORDER | VII 00) 112

2. Whereas in that Application the Congo founds the jurisdiction of
the Court on the declarations made by the two States under Article 36,
paragraph 2, of the Statute:

3. Whereas in the said Application the Congo states that the “armed
aggression by Ugandan troops on Congolese territory has involved inter
alia violation of the sovereignty and territorial integrity of the Demo-
cratic Republic of the Congo”, and that “[t]he extent of the invasion of
the Democratic Republic of the Congo has been such that it currently
involves fighting in seven provinces: Nord-Kivu, Sud-Kivu, Maniema,
Orientale Province, Katanga, Equateur and Kasai Oriental”; whereas the
Congo recalls “all the efforts undertaken by the Congolese Government
with a view to enforcing its right to secure the withdrawal of . . . foreign
troops”, in particular within the United Nations and the Organization of
African Unity; and whereas the Congo observes that “[b]y . .. providing
unlimited aid to rebels in the form of arms and armed troops, in return
for the right to exploit the wealth of the Congo for their own benefit,
Uganda has defied the international community and created a dangerous
precedent”, that “the invasion of its territory, which has required — and
still requires — inordinate financial efforts, has paralysed the majority of
the country’s economic sectors, to the detriment of the Congolese people”,
and that “Uganda has prevented the peaceful settlement of the rebellion
— an internal problem of the Democratic Republic of the Congo”:

4. Whereas in its Application the Congo also contends that the “armed
aggression by Ugandan troops on Congolese territory has involved .. .
violations of international humanitarian law and massive human rights
violations”; whereas it states more particularly that “the various human
rights violations perpetrated by the Ugandan Republic” have been set
out in two White Papers prepared by the Ministry of Human Rights,
annexed to the Application: and whereas it cites massacres, rapes, abduc-
tions and murders, arrests, arbitrary detentions, inhuman and degrading
treatment, systematic looting of private and public institutions and
seizure of property of the civilian population”;

5. Whereas in the Application the Congo refers to “the serious viola-
tions committed by Uganda”, citing inter alia “the major principles of
international law”; and whereas in this connection it refers to violations
of Article 2, paragraph 4, of the United Nations Charter, of Articles 3 et
seq. of the Charter of the Organization of African Unity, of the rules set
out in the Universal Declaration of Human Rights and in the Interna-
tional Covenant on Civil and Political Rights of 1966, and of the provi-
sions of the 1949 Geneva Conventions, of the Additional Protocols of
1977, of the New York Convention of 1984 against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, and of the
Montreal Convention of 1971 for the Suppression of Unlawful Acts
against the Safety of Civil Aviation;

6. Whereas the Congo adds that by its Application it “seeks to secure

5
ARMED ACTIVITIES (ORDER | VII 00) 113

the cessation of the acts of aggression directed against it, which constitute
a serious threat to peace and security in central Africa in general and in
the Great Lakes region in particular”, and that it “also seeks reparation

for acts

of intentional destruction and looting, and the restitution of

national property and resources appropriated for the benefit of Uganda”;

7. Whereas the Congo concludes its Application with the following
submissions:

“Consequently, and whilst reserving the right to supplement and
amplify the present request in the course of the proceedings, the
Democratic Republic of the Congo requests the Court to:

Adjudge and declare that:

(a)

(b)

(ce)

(d)

Uganda is guilty of an act of aggression within the meaning of
Article 1 of resolution 3314 of the General Assembly of the
United Nations of 14 December 1974 and of the jurisprudence
of the International Court of Justice, contrary to Article 2, para-
graph 4, of the United Nations Charter;

further, Uganda is committing repeated violations of the
Geneva Conventions of 1949 and their Additional Protocols of
1977, in flagrant disregard of the elementary rules of interna-
tional humanitarian law in conflict zones, and is also guilty of
massive human rights violations in defiance of the most basic
customary law;

more specifically, by taking forcible possession of the Inga
hydroelectric dam, and deliberately and regularly causing
massive electrical power cuts, in violation of the provisions of
Article 56 of the Additional Protocol of 1977. Uganda has
rendered itself responsible for very heavy losses of life among
the 5 million inhabitants of the city of Kinshasa and the sur-
rounding area;

by shooting down, on 9 October 1998 at Kindu, a Boeing 727
the property of Congo Airlines, thereby causing the death of
40 civilians, Uganda has also violated the Convention on Inter-
national Civil Aviation signed at Chicago on 7 December 1944,
the Hague Convention of 16 December 1970 for the Suppres-
sion of Unlawful Seizure of Aircraft and the Montreal Conven-
tion of 23 September 1971 for the Suppression of Unlawful
Acts against the Safety of Civil Aviation.

Consequently, and pursuant to the aforementioned international
legal obligations, to adjudge and declare that:

(1)

(2)

all Ugandan armed forces participating in acts of aggression
shall forthwith vacate the territory of the Democratic Republic
of the Congo;

Uganda shall secure the immediate and unconditional with-

6
ARMED ACTIVITIES (ORDER | VII 00) 114

drawal from Congolese territory of its nationals, both natural
and legal persons;

(3) the Democratic Republic of the Congo is entitled to compensa-
tion from Uganda in respect of all acts of looting, destruction,
removal of property and persons and other unlawful acts attrib-
utable to Uganda, in respect of which the Democratic Republic
of the Congo reserves the right to determine at a later date the
precise amount of the damage suffered, in addition to its claim
for the restitution of all property removed”;

8. Whereas on 23 June 1999 the Registrar notified the Ugandan Gov-
ernment, by facsimile and by letter, of the filing of that Application, and
a certified copy of the Application was transmitted to that Government;
whereas, in accordance with Article 40, paragraph 3, of the Statute and
Article 42 of the Rules of Court. copies of the Application were trans-
mitted to the Members of the United Nations through the Secretary-
General, as well as to the other States entitled to appear before the
Court; and whereas, by an Order of 21 October 1999, the Court fixed
21 July 2000 and 21 April 2001 as the time-limits for the filing, respec-
tively, of the Memorial of the Congo and the Counter-Memorial of
Uganda;

9. Whereas on 19 June 2000 the Congo submitted to the Court a
request for the indication of provisional measures, citing Article 41 of the
Statute of the Court and Articles 73, 74 and 75 of the Rules of Court;
and whereas in that request the Congo, citing Article 74, paragraph 4, of
the Rules of Court, also asked the President of the Court to exercise the
power conferred upon him by that paragraph to “call upon the Republic
of Uganda to act in such a way as will enable any order the Court may
make on the request for provisional measures to have its appropriate
effects”:

10. Whereas in this request for the indication of provisional measures
the Congo states that:

“[sjince 5 June last, the resumption of fighting between the armed
troops of the Republic of Uganda and another foreign army has
caused substantial damage to the Democratic Republic of the Congo
and to its population”;

whereas the Congo points out that “[t]hese actions have been unani-
mously condemned, in particular by the United Nations Security Coun-
cil”; whereas it contends that

“[djespite promises and declarations of principle, the Republic of
Uganda has pursued its policy of aggression, brutal armed attacks
and acts of oppression and looting”,

and that “[tJhis is, moreover, the third Kisangani war, coming after those
of August 1999 and May 2000 and having been instigated by the Repub-
lic of Uganda . . .”; and whereas the Congo further observes that these

7
ARMED ACTIVITIES (ORDER | VII 00) 115

acts “represent just one further episode constituting evidence of the mili-
tary and paramilitary intervention, and of occupation, commenced by
the Republic of Uganda in August 1998”, and “reflect in particular the
conflicts between the foreign forces engaged in organized looting of
the natural resources and the assets and equipment of the Democratic
Republic of the Congo”:

11. Whereas in the request for the indication of provisional measures
the Congo argues that “each passing day causes to the Democratic Repub-
lic of the Congo and its inhabitants grave and irreparable prejudice”, and
that it is “urgent that the rights of the Democratic Republic of the Congo
be safeguarded in accordance with the Charter of the United Nations and
the Statute of the Court”;

12. Whereas the Congo adds that its request “is a direct outgrowth of
the dispute which it brought” before the Court, and that “[t]here can be
no doubt as to the prima facie jurisdiction of the Court”;

13. Whereas at the conclusion of its request the Congo asks the Court
to indicate as a matter of urgency the following provisional measures:

“(1) the Government of the Republic of Uganda must order its
army to withdraw immediately and completely from Kisan-
gani;

(2) the Government of the Republic of Uganda must order its
army to cease forthwith all fighting or military activity on the
territory of the Democratic Republic of the Congo and to with-
draw immediately and completely from that territory, and must
forthwith desist from providing any direct or indirect support
to any State, group, organization, movement or individual
engaged or preparing to engage in military activities on the ter-
ritory of the Democratic Republic of the Congo;

(3) the Government of the Republic of Uganda must take all
measures in its power to ensure that units, forces or agents
which are or could be under its authority, or which enjoy or
could enjoy its support, together with organizations or persons
which could be under its control, authority or influence, desist
forthwith from committing or inciting the commission of war
crimes or any other oppressive or unlawful act against all per-
sons on the territory of the Democratic Republic of the Congo;

(4) the Government of the Republic of Uganda must forthwith
discontinue any act having the aim or effect of disrupting,
interfering with or hampering actions intended to give the
population of the occupied zones the benefit of their funda-
mental human rights, and in particular their rights to health
and education;

(5) the Government of the Republic of Uganda must cease forth-

8
ARMED ACTIVITIES (ORDER | VII 00) 116

with all illegal exploitation of the natural resources of the
Democratic Republic of the Congo and all illegal transfer of
assets, equipment or persons to its territory;

(6) the Government of the Republic of Uganda must henceforth
respect in full the right of the Democratic Republic of the
Congo to sovereignty, political independence and territorial
integrity, and the fundamental rights and freedoms of all per-
sons on the territory of the Democratic Republic of the Congo.

The Democratic Republic of the Congo would, at all events,
respectfully remind the Court of the powers conferred upon it by
Article 4] of its Statute and Article 75 of the Rules of Court,
which authorize it in the present case to indicate all such provisional
measures as it may deem necessary in order to bring to an end the
intolerable situation which continues to obtain in the Democratic
Republic of the Congo, and in particular in the Kisangani region”;

14. Whereas, immediately upon receiving the text of the request for
the indication of provisional measures, the Registrar transmitted a certi-
fied copy thereof to the Agent of Uganda, in accordance with Article 73,
paragraph 2, of the Rules of Court; and whereas the Registrar also noti-
fied the Secretary-General of the United Nations of the filing of the
request;

15. Whereas, by letters dated 19 June 2000, the President of the Court
addressed the Parties in the following terms:

“Acting in conformity with Article 74, paragraph 4, of the Rules
of Court, I hereby draw the attention of both Parties to the need to
act in such a way as to enable any Order the Court will make on the
request for provisional measures to have its appropriate effects”:

16. Whereas, by letter dated 20 June 2000, the Registrar informed the
Parties that the Court had designated 26 June 2000 as the date for the
opening of the hearings provided for in Article 74, paragraph 3, of the
Rules of Court, at which they would have the opportunity to present
their observations on the request for the indication of provisional
measures;

17. Whereas, at the public hearings held on 26 and 28 June 2000, oral
observations on the request for the indication of provisional measures
were presented:

On behalf of the Congo:
by Mr. Michel Lion, Agent,
H.E. Mr. She Okitundu,
Mr. Ntumba Luaba,
Mr. Olivier Corten;
ARMED ACTIVITIES (ORDER | VII 00) 117

On behalf of Uganda:

by H.E. Bart M. Katurecbe. Agent,
Mr. Ian Brownlie,
Mr. Paul S. Reichler:

x Ok

18. Whereas at the hearings the Congo essentially reiterated the line of
argument developed in its Application and in its request for the indica-
tion of provisional measures; whereas it observed that Article 41 of the
Statute confers “a substantial power of discretion on the Court, by pro-
viding that it may indicate provisional measures” and that “[tjhe only
condition expressly laid down is that the circumstances should require the
adoption of such measures”; whereas the Congo asserted that “this was
undeniably so in the present case having regard to the extreme gravity of
the situation on the ground”, which was characterized by the military
and paramilitary presence of the Ugandan army on Congolese territory,
repeated clashes between the armed forces of Uganda and those of
another neighbouring country in the city of Kisangani, the persistence
and aggravation of economic rivalry aimed at the seizure of the wealth of
the Congo. and the persistence and aggravation of acts of oppression
directly affecting the civilian population;

19. Whereas at the hearings the Congo, citing the Court’s jurispru-
dence, argued more particularly that the requirements of urgency and of
the risk of irreparable damage, conditions precedent for the indication of
provisional measures, were satisfied in the present case; whereas it stated
inter alia that “each passing day, the territory of the Democratic Repub-
lic of the Congo continues to be occupied, its resources and assets are
systematically plundered, its inhabitants abducted, injured or killed”,
that “it is difficult to conceive of damage more ‘irreparable’ than this”,
and that “[nJo form of material restitution, compensation or redress can
fully make good the deaths, suffering and humiliation undergone daily by
the Democratic Republic of the Congo and its inhabitants”; whereas it
added that “[w]hen an armed conflict develops and endangers not only
the rights and interests of the State but also the lives of its inhabitants,
the urgency of provisional measures and the irreparable nature of the
damage cannot be in doubt”; and whereas it pointed out that, “in two
recent cases, the life of a single individual justified the indication of
measures intended to avert an irreparable event” and that “[a] fortiori,
measures should be indicated as a matter of urgency in circumstances
where . .. hundreds, if not thousands, of persons are being condemned
to certain death .. .”;

20. Whereas the Congo further observed that “the fact that certain
Ugandan high authorities have officially stated that they agree to with-
draw their forces from the Kisangani region and that the beginnings of a
withdrawal have in fact taken place can . . . in no way call into question”
the need for the indication of measures as a matter of urgency, and that

10
ARMED ACTIVITIES (ORDER 1 VII 00) 118

“these statements [did not] concern . . . the whole of Congolese terri-
tory”; and whereas it pointed out, moreover, that, under the Court’s
jurisprudence, “the existence of obligations whereby one or other Party
agrees to put an immediate end to the acts underlying the request for the
indication of provisional measures does not prevent the Court from
acceding to that request”;

21. Whereas at the hearings the Congo also contended that there was
“a sufficient connection between the measures requested and the rights
protected”; whereas it stated, on the basis of a comparison of the text for
the request of the indication of provisional measures with that of the
Application instituting the proceedings, that the “categories of act referred
to are similar” and that the “rules of law applicable are similar”, arguing
more particularly as follows:

“However, at this preliminary stage of a request for the indication
of provisional measures, the Democratic Republic of the Congo is
not asking the Court fo condemn Uganda, to require it to pay com-
pensation by way of reparation, or even to declare — at any event
not in the operative part of the order for the indication of provi-
sional measures — that Uganda has violated international law. The
withdrawal of troops, or the ending of support for irregular armed
groups, are required not as consequences of a finding that Uganda
has violated international law, but simply as measures preserving the
rights of the Democratic Republic of the Congo until the Court is
able to decide the dispute on the merits. Under such conditions, the
requests made correspond, mutatis mutandis, to those which the
Court has indicated in other precedents which are not without rele-
vance to the present case, such as those in the Military Activities,
Frontier Dispute and Genocide cases, or in the Land and Maritime
Boundary case”;

22. Whereas at the hearings the Congo further contended that the
Court has prima facie jurisdiction “to entertain the dispute which is the
subject-matter of the Application”, having regard to the declarations of
acceptance of its compulsory jurisdiction deposited by the two Parties;
and whereas in this regard it added the following:

“In the Military Activities case, the Court found that it had prima
facie jurisdiction precisely because it was dealing with two declara-
tions of acceptance deposited under Article 36, paragraph 2, of its
Statute, even though the validity of one of these declarations (that of
Nicaragua) had been challenged and the other (that of the United
States) contained a reservation which was directly pertinent to the
case concerned (1.C_/. Reports 1984, p. 181, para. 26). A fortiori, the
Court must hold itself to have prima facie jurisdiction in the present
case, since it is dealing with two declarations whose validity is

Il
ARMED ACTIVITIES (ORDER 1 VII 06) 119

unquestioned and which contain no reservation which might prevent
the Court from exercising its jurisdiction”;

23. Whereas at the hearings the Congo stated finally that “[t]here is
nothing in the political and diplomatic context of the present case which
might prevent the Court from taking the measures which the circum-
stances require”; whereas it pointed out that “the Security Council has
adopted a resolution — resolution 1304 of 16 June 2000 — in which it
was demanded that Uganda withdraw its forces not only from Kisangani
but from all Congolese territory, without further delay”; whereas it
observed that “[t]he withdrawal of Ugandan forces is in substance what
the Congo is asking the Court to indicate, not as a political measure with
a view to the maintenance of international peace and security, but as a
Judicial measure”; and whereas, referring to the Court’s jurisprudence, it
argued that “fijt is not, however, possible to derive from these parallel
powers of the Security Council and of the Court any bar to the exercise
by the latter of its jurisdiction”; and whereas, recalling that resolution
1304 “does not concern Uganda alone, but also Rwanda”, the Congo
pointed out that “although on 23 June 1999 three separate Applications
were filed, one of them against Uganda, another against Rwanda, it is
only in respect of Uganda that the Democratic Republic of the Congo
has considered it appropriate to submit a request for the indication of
provisional measures”; whereas it observed that “[tfhese particular cir-
cumstances are clearly not such as would prevent the Court from indi-
cating the provisional measures which are the subject-matter of the
present proceedings”; and whereas it explained that “[t]he Court [was]
not being asked to enjoin a State not party to the proceedings to follow
a particular course of conduct”, adding the following:

“The Court is accordingly fully entitled to rule on a request which
concerns the State of Uganda specifically and exclusively, even
though it is not precluded, should it see fit, from indicating proprio
motu, on its own initiative, provisional measures directed at other
States in the context of other legal disputes, provided that such legal
disputes fall within its prima facie jurisdiction” :

%

24, Whereas at the hearings Uganda gave the following account of
events:

“The Congolese forces that overthrew President Mobutu in May
1997 were led by Mr. Kabila, the current President. At the outbreak
of the fighting, President Mobutu’s army abandoned Eastern Congo,
leaving no central governmental presence or authority. At the invita-
tion of Mr. Kabila, Ugandan forces entered Eastern Congo to work
in collaboration with his forces to arrest the activities of the anti-
Uganda rebels.

12

ARMED ACTIVITIES (ORDER 1 VII 00) 120

Ugandan forces remained in Eastern Congo after Mr. Kabila
became President in May 1997, again at his invitation. The central
Government in Kinshasa, which was in the process of creating a new
army and a police force, had no capability to exercise authority in
this remote region of the country. This arrangement with President
Kabila was formalized by written agreement dated 27 April 1998...
This agreement expressly recognizes the existence of armed irregu-
lars conducting military activities across the Ugandan/Congolese
border, and it provides for joint action by Ugandan and Congolese
armed forces in the Democratic Republic of the Congo to stop
them”:

whereas it added that “Uganda has no territorial interests in the Demo-
cratic Republic of the Congo”, that “[t]here is a complete political
vacuum in Eastern Congo” and that “{t]here is no one else to restrain the
anti-Uganda rebels or guarantee the security of Uganda’s border”; and
whereas at the hearings Uganda stated:

“At the time of lodging the Application on 23 June 1999, the Gov-
ernment of Uganda and the Government of the Democratic Repub-
lic of the Congo, along with other parties to the conflict, were
already actively involved in direct negotiations aimed at resolving
the conflict and establishing a framework for peace in the region.
This was eventually achieved when the Lusaka Agreement was signed
... Uganda therefore views any moves to seek alternative ways of
solving the dispute as an act of bad faith and ultimately as a form of
undermining the entire peace process”;

whereas it explained that “on its part, [it] has endeavoured to fulfil all its
obligations laid down in the Lusaka Agreement”, and that “with respect
to the events in Kisangani, Uganda has fully complied with the United
Nations resolutions in the matter and completely withdrawn its troops
from the city”; whereas it stated itself “ready to withdraw all its troops
from the territory of the Democratic Republic of the Congo in accord-
ance with the Lusaka Agreement and in accordance with the relevant
resolutions of the United Nations Security Council”; and whereas it
stressed that any immediate and unilateral withdrawal of its forces, as
now being requested by the Congo, would be in fundamental conflict
with the Lusaka Agreement and the Kampala Disengagement Agree-
ment, under which the Congo itself agreed that “foreign forces would be
withdrawn [from its territory] subject to a precise timetable and following
a sequence of defined events”;

25. Whereas at the hearings Uganda also asserted that “both the
Application and the request for provisional measures are based on pre-
posterous allegations that are not backed by any evidence whatsoever

13
ARMED ACTIVITIES (ORDER | VII 00) 121

before this Court”, and that there was “no amassing of troops on our
common border with the Democratic Republic of the Congo or on any
border with any of the neighbouring States”; and whereas in conse-
quence it asked the Court to

“reject the Application for interim measures so that the Parties can
concentrate on implementing the resolution of the Security Council
and in fulfilling their obligations under the Lusaka Agreement which
has gained regional and international acceptance as the most viable
means of ending the current conflict in the Democratic Republic of
the Congo”;

26. Whereas at the hearings Uganda contended that “in the circum-
stances the request of the Democratic Republic of the Congo is inadmis-
sible, and this for the reason that as a matter of law the Court 1s pre-
vented from exercising its powers under Article 41 of the Statute”;
whereas in this connection it referred to the Orders made by the Court on
14 April 1992 in the cases concerning Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom} and
(Libyan Arab Jumahiriya v. United States of America); and whereas it
argued that “the subject-matter of the request for interim measures is
essentially the same as the matters addressed by . . . Security Council
resolution [1304] of 16 June [2000]” and that “the principles invoked by
the Court in the Lockerbie cases of 1992 must... apply”:

27. Whereas at the hearings Uganda argued in the alternative that

“even if the Court had a prima facie competence by virtue of
Article 41, there are concerns of propriety and judicial prudence
which strongly militate against the exercise of the discretion which
the Court has in the indication of interim measures”;

whereas it pointed out that “the Congolese request has the same subject-
matter as the Security Council resolution”, that “the Republic of Uganda
accepts the resolution which was, in any event, adopted in accordance
with Chapter VII of the Charter and is therefore binding”, and that,
“pursuant to the resolution, the Republic of Uganda has withdrawn all
its forces from Kisangani”; and whereas it accordingly concluded that
“the request has in practical terms been rendered redundant”; whereas
Uganda asserted that “all the relevant States and other interested parties
have expressly agreed to the resolution of outstanding issues exclusively
by recourse to the modalities established by the Lusaka Agreement and
the subsequent peace process”, and that “[t]he Lusaka Agreement is the
relevant regional public order system and in the text of the Security
Council resolution this is effectively recognized”; whereas Uganda con-
tended that “the Court should not grant interim measures because
the requesting State has not complied with the normal and necessary

14
ARMED ACTIVITIES (ORDER | VII 00) 122

standards of procedural fairness”; whereas it stated that “the Court has
not yet received the Memorial of the requesting State”, that “[t]he Applica-
tion is, of course, available . . . but the allegations contained in the Appli-
cation have no relation to the Republic of Uganda or its armed forces”,
that “the request itself is deficient in substance and is unsupported by any
evidence”, and that there is a problem of “adequate notice to the respon-
dent State” (request submitted on 19 June 2000, Congo’s argument pre-
sented on 26 June 2000); whereas it made the point, “on the question of
procedural fairness”, that the “requesting State has seen fit to single
out Uganda in these proceedings”, although “[the Lusaka Agreement]
was signed by six States, all of which are bound by the provisions for dis-
engagement, not just Uganda”, and “the Security Council resolution of
16 June calls on ‘all parties’ . . . to cease hostilities and makes several
references to the Rwandan forces”; and whereas Uganda referred also to
the principle of the Monetary Gold case”;

28. Whereas at the hearings Uganda stressed that “any action .. . by
[its] armed forces . . . has been in accordance with the principles of the
United Nations Charter”: and whereas it explained, with reference to
“activities of armed bands operating from Congolese territory”, that “[i]n
responding to these threats to its territorial integrity and security, Uganda
acted by virtue of Article 51 of the Charter”;

29. Whereas at the hearings Uganda argued that there was an “absence
of any clear link between the request and the original claim”, as the latter
“[did] not . . . relate to any conflict between Ugandan and Rwandan
armed forces”: and whereas it asserted that “the [Congo’s] request [fails
to satisfy] the requirement of urgency or the risk of irreparable damage”
and that there cannot “be an element of urgency after the Congo has
waited for almost a year before making a complaint”;

30. Whereas at the hearings Uganda stated that “the Lusaka Agree-
ment is a comprehensive system of public order, signed by the Heads of
State of six African States and the leaders of three Congolese rebel
groups”, and that “it is a binding international agreement that constitutes
the governing law between and among the parties to the conflict in the
Democratic Republic of the Congo, and between the Democratic Repub-
lic of the Congo and Uganda in particular”; whereas it maintained that
“the parties to the Lusaka Agreement, including the Democratic Repub-
lic of the Congo and Uganda, continue to express their full support
for the Agreement”, and that “[t]he Security Council and the Secretary-
General have repeatedly declared that [this] Agreement is the only viable
process for achieving peace within the Democratic Republic of the Congo
and for achieving peace between the Democratic Republic of the Congo
and its neighbours”; and whereas Uganda emphasized that “the specific
interim measures requested by the Democratic Republic of the Congo
directly conflict with the Lusaka Agreement, and with the Security Coun-
cil resolutions — including resolution 1304 . ..— calling for implementa-
tion of the Agreement”:

15
ARMED ACTIVITIES (ORDER | VII 00) 123

31. Whereas, in response to the arguments put forward by Uganda,
the Congo contended inter alia, with regard to the requirement of urgency,
that “at all events, the fact that a request may not have been submitted
cannot support a claim of lack of urgency”, and pointed out that “the
three attacks on Kinsangani, one of them just weeks ago, have once again
demonstrated the dangers and irreparable risks to which its inhabitants
are exposed as a result of the continuing presence of foreign armies on
Congolese territory”: whereas, as regards one of Uganda’s arguments
deriving from Security Council resolution 1304, the Congo stated that
“no incompatibility can be shown between the text of the resolution and
the text of the requests”; whereas, as to Uganda’s argument on the
“absence of Rwanda”, the Congo observed, citing the Court’s case-law,
that an applicant State is “entitled to isolate procedurally a specific rela-
tionship with another State”; and whereas, in response to Uganda's argu-
ment on the Lusaka Agreement, the Congo observed that this Agreement
“can in no circumstances negate [the rules on the prohibition of the use of
force and on the prohibition of aggression and of occupation]”, and that
it “merely prescribes the procedures for a withdrawal but cannot in any
event compromise the requirement of withdrawal”:

*
* %

32. Whereas the two Parties have each made a declaration recognizing
the jurisdiction of the Court in accordance with Article 36, paragraph 2,
of the Statute: whereas the declaration of Uganda was deposited with the
Secretary-General of the United Nations on 3 October 1963 and that of
the Congo (formerly Zaire) on 8 February 1989; whereas neither of the
two declarations includes any reservation; and whereas Uganda stated in
its declaration that it was made on the sole condition of reciprocity;

33. Whereas on a request for the indication of provisional measures
the Court need not, before deciding whether or not to indicate such
measures, finally satisfy itself that it has jurisdiction on the merits of the
case, yet 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:

34. Whereas the Court considers that the declarations made by the
Parties in accordance with Article 36, paragraph 2, of the Statute consti-

tute a prima facie basis upon which its jurisdiction in the present case
might be founded;

* OR

35. Whereas, in its request for the indication of provisional measures,
the Congo refers to resolution 1304 (2000), adopted by the United

16

ARMED ACTIVITIES (ORDER | VII 00) 124

Nations Security Council on 16 June 2000; whereas that resolution was
adopted by the Security Council acting under Chapter VII of the Charter
of the United Nations; and whereas, in the said resolution, the Security
Council:

“J. Calls on all parties to cease hostilities throughout the territory
of the Democratic Republic of the Congo and to fulfil their obliga-
tions under the Ceasefire Agreement and the relevant provisions of
the 8 April 2000 Kampala disengagement plan;

2. Reiterates its unreserved condemnation of the fighting between
Ugandan and Rwandan forces in Kisangani in violation of the sov-
ereignty and territorial integrity of the Democratic Republic of the
Congo, and demands that these forces and those allied to them desist
from further fighting:

3. Demands that Ugandan and Rwandan forces as well as forces
of the Congolese armed opposition and other armed groups imme-
diately and completely withdraw from Kisangani, and calls on all
parties to the Ceasefire Agreement to respect the demilitarization of
the city and its environs;

4. Further demands:

(a) that Uganda and Rwanda, which have violated the sovereignty
and territorial integrity of the Democratic Republic of the
Congo, withdraw all their forces from the territory of the
Democratic Republic of the Congo without further delay, in
conformity with the timetable of the Ceasefire Agreement and
the 8 April 2000 Kampala disengagement plan;

(b) that each phase of withdrawal completed by Ugandan and
Rwandan forces be reciprocated by the other parties in con-
formity with the same timetable;

(c) that all other foreign military presence and activity, direct and
indirect, in the territory of the Democratic Republic of the
Congo be brought to an end in conformity with the provisions
of the Ceasefire Agreement;

5. In this context demands that all parties abstain from any offen-
sive action during the process of disengagement and of withdrawal
of foreign forces;

6. Requests the Secretary-General to keep under review arrange-
ments for deployment of the personnel of the United Nations Organi-
zation Mission in the Democratic Republic of the Congo (MONUC),
as authorized and in conditions defined by resolution 1291 (2000), to
monitor the cessation of hostilities, disengagement of forces and
withdrawal of foreign forces as described in paragraphs | to 5 above
and to assist in the planning of these tasks, and requests also the
Secretary-General to recommend any adjustment that may become
necessary in this regard;

7. Calls on all parties, in complying with paragraphs | to 5 above,

17
ARMED ACTIVITIES (ORDER | VII 00) 125

to cooperate with the efforts of MONUC to monitor the cessation of
hostilities, disengagement of forces and withdrawal of foreign forces;

8. Demands that the parties to the Ceasefire Agreement cooperate
with the deployment of MONUC to the areas of operations deemed
necessary by the Special Representative of the Secretary-General,
including by lifting restrictions on the freedom of movement of
MONUC personnel and by ensuring their security;

9. Calls on all the Congolese Parties to engage fully in the National
Dialogue process as provided for in the Ceasefire Agreement, and
calls in particular on the Government of the Democratic Republic of
the Congo to reaffirm its full commitment to the National Dialogue,
to honour its obligations in this respect and to cooperate with the
Facilitator designated with the assistance of the OAU and to allow
for the full participation of political opposition and civil society
groups in the dialogue;

10. Demands that all parties cease all forms of assistance and
cooperation with the armed groups referred to in Annex A, Chap-
ter 9.1 of the Ceasefire Agreement;

11. Welcomes efforts made by the parties to engage in a dialogue
on the question of disarmament, demobilization, resettlement
and reintegration of members of all armed groups referred to in
Annex A, Chapter 9.1 of the Ceasefire Agreement, and urges the
parties, in particular the Government of the Democratic Republic
of the Congo and the Government of Rwanda, to continue these
efforts in full cooperation;

12. Demands that all parties comply in particular with the provi-
sions of Annex A, Chapter 12 of the Ceasefire Agreement relating to
the normalization of the security situation along the borders of the
Democratic Republic of the Congo with its neighbours;

13. Condemns all massacres and other atrocities carried out in the
territory of the Democratic Republic of the Congo, and urges that
an international investigation into all such events be carried out with
a view to bringing to justice those responsible;

14. Expresses the view that the Governments of Uganda and
Rwanda should make reparations for the loss of life and the prop-
erty damage they have inflicted on the civilian population in Kisan-
gani, and requests the Secretary-General to submit an assessment of
the damage as a basis for such reparations;

15. Calls on all the parties to the conflict in the Democratic
Republic of the Congo to protect human rights and respect inter-
national humanitarian law:

18
ARMED ACTIVITIES (ORDER 1 VII 00) 126

16. Calls also on all parties to ensure the safe and unhindered
access of relief personnel to all those in need, and recalls that the
parties must also provide guarantees for the safety, security and free-
dom of movement for United Nations and associated humanitarian
relief personnel;

17. Further calls on all parties to cooperate with the International
Committee of the Red Cross to enable it to carry out its mandate as
well as the tasks entrusted to it under the Ceasefire Agreement;

18. Reaffirms the importance of holding, at the appropriate time,
an international conference on peace, security, democracy and devel-
opment in the Great Lakes region under the auspices of the United
Nations and of the OAU, with the participation of all the Govern-
ments of the region and all others concerned;

19. Expresses its readiness to consider possible measures which
could be imposed in accordance with its responsibility under the
Charter of the United Nations in the case of failure by parties to
comply fully with this resolution;

20. Decides to remain actively seized of the matter”;

36. Whereas the Court notes Uganda’s argument that the Congo’s

request for the indication of provisional measures concerns essentially
the same issues as this resolution, that the said request is accordingly
inadmissible, and that the request is, moreover, moot, since Uganda
fully accepts the resolution in question and is complying with it; whereas
Security Council resolution 1304 (2000), and the measures taken in its
implementation, do not preclude the Court from acting in accordance
with its Statute and with the Rules of Court; whereas in particular, as
the Court has already had occasion to observe.

“while there is in the Charter

‘a provision for a clear demarcation of functions between the Gen-
eral Assembly and the Security Council, in respect of any dispute or
situation, that the former should not make any recommendation
with regard to that dispute or situation unless the Security Council
so requires, there is no similar provision anywhere in the Charter
with respect to the Security Council and the Court. The Council has
functions of a political nature assigned to it, whereas the Court
exercises purely judicial functions. Both organs can therefore per-
form their separate but complementary functions with respect to
the same events’ (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America}, Jurisdiction
and Admissibility, Judgment, LC.J. Reports 1984, pp. 434-435,
para. 95)” (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide, Provisional Measures, Order
of 8 April 1993, 1. C.J. Reports 1993, p. 19, para. 33);

19
ARMED ACTIVITIES (ORDER | VII 00) 127

and whereas in the present case the Security Council has taken no deci-
sion which would prima facie preclude the rights claimed by the Congo
from “be{ing] regarded as appropriate for protection by the indication of
provisional measures” (Questions of Interpretation and Application of the
1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom}, Provisional Measures,
Order of 14 April 1992, p. 15, para. 40);

37. Whereas the Court has taken note of the Lusaka Agreement, to
which Security Council resolution 1304 (2000) refers a number of times:
whereas that Agreement constitutes an international agreement binding
upon the Parties: whereas it does not, however, preclude the Court from
acting in accordance with its Statute and with the Rules of Court;

38. Whereas, furthermore, the Court is not precluded from indicating
provisional measures in a case merely because a State which has simul-
taneously brought a number of similar cases before the Court seeks such
measures in only one of them; and whereas, pursuant to Article 75, para-
graph |, of its Rules, the Court may in any event decide to examine
proprio motu whether the circumstances of the case require the indication
of provisional measures:

OF

39. Whereas the power of the Court to indicate provisional measures
under Article 41 of the Statute of the Court has as its object to preserve
the respective rights of the parties pending the decision of the Court, and
presupposes that irreparable prejudice shall not be caused to rights which
are the subject of dispute in judicial proceedings; whereas it follows that
the Court must be concerned to preserve by such measures the rights
which may subsequently be adjudged by the Court to belong either to the
Applicant or to the Respondent; and whereas such measures are only
justified if there is urgency;

40. Whereas the rights which, according to the Congo’s Application,
are the subject of the dispute are essentially its rights to sovereignty and
territorial integrity and to the integrity of its assets and natural resources,
and its rights to respect for the rules of international humanitarian law
and for the instruments relating to the protection of human rights; and
whereas it is upon the rights thus claimed that the Court must focus its
attention in its consideration of this request for the indication of provi-
sional measures;

41. Whereas the Court is in possession of information on the facts of
this case, and in particular that contained in the above-mentioned Secu-
rity Council resolution 1304 (2000) of 16 June 2000; whereas, however,
the Court’s duty at this stage of the proceedings is limited to examining
whether the circumstances brought to its attention require the indication
of provisional measures; and whereas it cannot make definitive findings
of fact or of imputability, since the right of each of the Parties to submit

20
ARMED ACTIVITIES (ORDER | VII 00) 128

arguments in respect of the merits must remain unaffected by the Court’s
decision;

42. Whereas it is not disputed that at this date Ugandan forces are
present on the territory of the Congo, that fighting has taken place on
that territory between those forces and the forces of a neighbouring
State, that the fighting has caused a large number of civilian casualties in
addition to substantial material damage, and that the humanitarian
situation remains of profound concern; and whereas it is also not dis-
puted that grave and repeated violations of human rights and inter-
national humanitarian law, including massacres and other atrocities,
have been committed on the territory of the Democratic Republic of
the Congo;

43. Whereas, in the circumstances, the Court is of the opinion that
persons, assets and resources present on the territory of the Congo, par-
ticularly in the area of conflict, remain extremely vulnerable, and that
there is a serious risk that the rights at issue in this case, as noted in para-
graph 40 above, may suffer irreparable prejudice; whereas the present
urgency in the situation cannot be in any way affected by the fact that the
Congo did not present its request for provisional measures at the same
time as its Application; and whereas the Court consequently considers
that provisional measures must be indicated as a matter of urgency in
order to protect those rights; whereas Article 75, paragraph 2, of the
Rules of Court empowers the Court to indicate measures that are in
whole or in part other than those requested;

44. Whereas, independently of requests for the indication of provi-
sional measures submitted by the parties to preserve specific rights, the
Court possesses by virtue of Article 41 of the Statute the power to indi-
cate 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,
Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996,
pp. 22-23, para. 41); whereas, having regard to the information at its dis-
posal, and in particular the fact that the Security Council has determined,
in its resolution 1304 (2000), that the situation in the Congo “continues
to constitute a threat to international peace and security in the region”,
the Court is of the opinion that there exists a serious risk of events
occurring which might aggravate or extend the dispute or make it more
difficult to resolve;

kX

45. Whereas, in view of the foregoing considerations, the Court finds
that the circumstances require it to indicate provisional measures, as pro-
vided for in Article 41 of the Statute of the Court;

46. Whereas a decision in the present proceedings in no way prejudges
the question of the jurisdiction of the Court to deal with the merits of

21
ARMED ACTIVITIES (ORDER | VII 00) 129

the case, or any questions relating to the merits themselves, and leaves
unaffected the right of the Governments of the Congo and of Uganda to
submit arguments in respect of those questions;

*
* *

47. For these reasons,

THE COURT,

Indicates, pending a decision in the proceedings instituted by the
Democratic Republic of the Congo against the Republic of Uganda, the
following provisional measures:

(1) Unanimously,

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 render in the
case, or which might aggravate or extend the dispute before the Court or
make it more difficult to resolve;

(2) Unanimously,

Both Parties must, forthwith, take all measures necessary to comply
with all of their obligations under international law, in particular those
under the United Nations Charter and the Charter of the Organization of
African Unity, and with United Nations Security Council resolution 1304
(2000) of 16 June 2000:

(3) Unanimously,

Both Parties must, forthwith, take all measures necessary to ensure full
respect within the zone of conflict for fundamental human rights and for
the applicable provisions of humanitarian law.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this first day of July, two thousand, 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 Uganda, respectively.

(Signed) Gilbert GUILLAUME,
President.

(Signed) Philippe COUVREUR,
Registrar.

22
ARMED ACTIVITIES (ORDER 1 VII 00) 130

Judges ObA and KOROMA append declarations to the Order of the
Court.

UInitialled) G.G.
(Initialled) Ph.C.

23


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE
LA BARCELONA TRACTION, LIGHT
AND POWER COMPANY, LIMITED
(BELGIQUE c. ESPAGNE)

ORDONNANCE DU 20 JUIN 1960

1960

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT

AND POWER COMPANY, LIMITED
(BELGIUM v. SPAIN)

ORDER OF 20 JUNE 1960
La présente ordonnance doit étre citée comme suit:
« Affaire de la Barcelona Traction, Light and Power Company,
Limited (Belgique c. Espagne),
Ordonnance du 20 juin 1960: C.I. J. Recueil 1960, p. 183.»

This Order should be cited as follows:
“Case concerning the Barcelona Traction, Light and Power Company,
Limited (Belgium v. Spain),
Order of 20 June 1960: I.C.]. Reports 1960, p. 183.”

Sales number LOL

183

INTERNATIONAL COURT OF JUSTICE

YEAR 1960 1960
20 June
General List:

20 June 1960 No. 41

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT
AND POWER COMPANY, LIMITED
(BELGIUM v. SPAIN)

The President of the International Court of Justice,

having regard to Article 48 of the Statute of the Court and to
Article 62 of the Rules of Court;

Having regard to the Order of 5 December 1959 extending to
21 May 1960 the time-limit fixed for the filing of the Counter-
Memorial of the Spanish Government;

Whereas, within the time-limit so extended, the Spanish Govern-
ment filed certain Preliminary Objections and asked the Court to
adjudge and declare that it is without jurisdiction to entertain the
Application of the Belgian Government and that the Application
is inadmissible;

Whereas, accordingly, by virtue of the provisions of Article 62,
paragraph 3, of the Rules of Court, the proceedings on the merits
are suspended and a time-limit has to be fixed for the presentation
by the other Party of a written statement of its Observations and
Submissions on the Preliminary Objections;

4
BARCELONA TRACTION (ORDER OF 20 VI 60) 184

Whereas, with reference to the fixing of a time-limit for the
presentation of such a written statement, the Agent for the Belgian
Government, by letter of 3 June 1960, stated that “The number,
the importance and the complexity of the questions raised both in
the historical part and in the part devoted to the preliminary
objections in the document in question, will involve considerable
work requiring the bringing together of numerous documents and
the undertaking of thorough research’; and that “In these
circumstances, the Belgian Government deems it essential to have
a period equal to that which was necessary for the Spanish Govern-
ment for the preparation of the document which it has filed, namely
eleven months”;

Whereas the Agent for the Spanish Government, to whom a copy
of the said letter was communicated on 10 June 1960, indicated
by letter of x7 June 1960 that “‘the Spanish Government considers
that the eleven months desired by the Belgian Government might
have given rise to some reservations’; but that “Nevertheless it
raises no objections and places itself entirely in the hands of the
Court as to the fixing of the time-limit”;

Fixes 5 December 1960 as the time-limit within which the Belgian
Government may present a written statement of its Observations
and Submissions on the Objections raised by the Spanish Govern-
ment.

Done in French and in English, the French text being author-
itative, at the Peace Palace, The Hague, this twentieth day of June,
one thousand nine hundred and sixty, in three copies, one of which
will be placed in the archives of the Court and the others trans-
mitted to the Belgian Government and to the Spanish Government,
respectively.

(Signed) Helge KLAESTAD,
President.

(Signed) GARNIER-COIGNET,
Deputy-Registrar.