Provisional measures

Code

OVERVIEW OF THE CASE

On 2 March 1999, the Federal Republic of Germany filed in the Registry of the Court an Application instituting proceedings against the United States of America in a dispute concerning alleged violations of the Vienna Convention on Consular Relations of 24 April 1963. Germany stated that, in 1982, the authorities of the State of Arizona had detained two German nationals, Karl and Walter LaGrand, who were tried and sentenced to death without having been informed of their rights, as is required under Article 36, paragraph 1 (b), of the Vienna Convention. Germany also alleged that the failure to provide the required notification precluded Germany from protecting its nationals’ interest provided for by Articles 5 and 36 of the Vienna Convention at both the trial and the appeal level in the United States courts. Germany asserted that although the two nationals, finally with the assistance of German consular officers, did claim violations of the Vienna Convention before the federal courts, the latter, applying the municipal law doctrine of “procedural default”, decided that, because the individuals in question had not asserted their rights in the previous legal proceedings at State level, they could not assert them in the federal proceedings. In its Application, Germany based the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and on Article I of the Optional Protocol of the Vienna Convention on Consular Relations.

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

Public hearings in the case were held from 13 to 17 November 2000. In its Judgment of 27 June 2001, the Court began by outlining the history of the dispute and then examined certain objections of the United States of America to the Court’s jurisdiction and to the admissibility of Germany’s submissions. It found that it had jurisdiction to deal with all Germany’s submissions and that they were admissible.

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

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

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

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

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

2 March 1999

Available in:

English French

Written proceedings

Judgment of 27 June 2001

Mertis

Summary of the Order of 5 March 1999

Available in:

English French

Summary 2001/2

Summary of the Judgment of 27 June 2001

Available in:

English French

Press releases

The Court held hearings from 2 to 11 March 1998 on the preliminary objections raised by Nigeria. In its Judgment of 11 June 1998, the Court found that it had jurisdiction to adjudicate upon the merits of the dispute and that Cameroon’s requests were admissible. The Court rejected seven of the preliminary objections raised by Nigeria and declared that, as the eighth did not have an exclusively preliminary character, it should be settled during the proceedings on the merits.

Nigeria filed its Counter-Memorial, including counter-claims, within the time-limit extended by the Court. On 30 June 1999, the Court adopted an Order declaring Nigeria’s counter-claims admissible and fixing 4 April 2000 as the time-limit for the filing of the Reply of Cameroon and 4 January 2001 as the time-limit for the filing of the Rejoinder of Nigeria. In its Order, the Court also reserved the right of Cameroon to present its views in writing a second time on the Nigerian counter-claims in an additional pleading which might be the subject of a subsequent Order. The Reply and the Rejoinder were duly filed within the time-limits so fixed. In January 2001, Cameroon informed the Court that it wished to present its views in writing a second time on Nigeria’s counter-claims. As Nigeria had no objection to that request, the Court authorized the presentation by Cameroon of an additional pleading relating exclusively to the counter-claims submitted by Nigeria. That pleading was duly filed within the time-limit fixed by the Court.

On 30 June 1999, the Republic of Equatorial Guinea filed an Application for permission to intervene in the case. Each of the two Parties having filed its written observations on that Application and Equatorial Guinea having informed the Court of its views with respect to them, the Court, by Order of 21 October 1999, authorized Equatorial Guinea to intervene in the case pursuant to Article 62 of the Statute, to the extent, in the manner and for the purposes set out in its Application. Equatorial Guinea filed a written statement and each of the Parties filed written observations on the latter within the time-limits fixed by the Court. Public hearings on the merits were held from 18 February to 21 March 2002.

In its Judgment of 10 October 2002, the Court determined as follows the course of the boundary, from north to south, between Cameroon and Nigeria :

In the Lake Chad area, the Court decided that the boundary was delimited by the Thomson-Marchand Declaration of 1929-1930, as incorporated in the Henderson-Fleuriau Exchange of Notes of 1931 (between Great Britain and France) ; it found that the boundary started in the Lake from the Cameroon-Nigeria-Chad tripoint (whose co-ordinates it defined) and followed a straight line to the mouth of the River Ebeji as it was in 1931 (whose coordinates it also defined) and thence ran in a straight line to the point where the river today divided into two branches.
Between Lake Chad and the Bakassi Peninsula, the Court confirmed that the boundary was delimited by the following instruments :
- from the point where the River Ebeji bifurcated as far as Tamnyar Peak, by the Thomson-Marchand Declaration of 1929-1930 (paras. 2-60), as incorporated in the Henderson-Fleuriau Exchange of Notes of 1931 ;
- from Tamnyar Peak to pillar 64 referred to in Article XII of the Anglo- German Agreement of 12 April 1913, by the British Order in Council of 2 August 1946 ;
- from pillar 64 to the Bakassi Peninsula, by the Anglo-German Agreements of 11 March and 12 April 1913.
The Court examined point by point seventeen sectors of the land boundary and specified for each one how the above-mentioned instruments were to be interpreted.
In Bakassi, the Court decided that the boundary was delimited by the Anglo-German Agreement of 11 March 1913 (Arts. XVIII-XX) and that sovereignty over the Bakassi Peninsula lay with Cameroon. It decided that in that area the boundary followed the thalweg of the River Akpakorum (Akwayafe), dividing the Mangrove Islands near Ikang in the way shown on map TSGS 2240, as far as a straight line joining Bakassi Point and King Point.
As regards the maritime boundary, the Court, having established that it had jurisdiction to address that aspect of the case — which Nigeria had disputed —, fixed the course of the boundary between the two States’ maritime areas.

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

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

29 March 1994

Available in:

English French

Additional Application to the Application Instituting Proceedings brought by the Republic of Cameroon

6 June 1994

Available in:

English French

French

Oral proceedings

Verbatim record 1996/2 (bilingual version)

Public sitting held on Tuesday 5 March 1996, at 10 a.m., at the Peace Palace, President Bedjaoui presiding

Procedure(s):Provisional measures

Available in:

Original Language

Verbatim record 1996/3 (bilingual version)

Translation

(bilingual version) Translation

Orders

Order of 21 October 1999

Decision on intervention; fixing of time-limits: Written Statement and Written Observations

Procedure(s):Intervention

Available in:

English French Bilingual

Order of 20 February 2001

Authorizing of submission of pleading relating to Counter-claims and fixing of time-limit therefor

Procedure(s):Counter-claims

Judgment of 10 October 2002

Procedure(s):Counter-claims

English French

Legality of Use of Force (Yugoslavia v. United States of America)

OVERVIEW OF THE CASE

On 29 April 1999, the Federal Republic of Yugoslavia filed in the Registry of the Court Applications instituting proceedings against Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and United States of America for alleged violations of their obligation not to use force against another State. In its Applications against Belgium, Canada, Netherlands, Portugal, Spain and United Kingdom, Yugoslavia referred, as a basis for the jurisdiction of the Court, to Article 36, paragraph 2, of the Statute of the Court and to Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948. Yugoslavia also relied upon Article IX of that Convention in its Applications against France, Germany, Italy and United States, but also relied on Article 38, paragraph 5, of the Rules of Court.

On 29 April 1999, Yugoslavia also submitted, in each case, an Application for the indication of provisional measures to ensure that the respondent State concerned “cease immediately its acts of use of force and . . . refrain from any act of threat or use of force” against Yugoslavia. After hearings on the provisional measures from 10 to 12 May 1999, the Court delivered its decision in each of the cases on 2 June 1999. In two of them (Yugoslavia v. Spain and Yugoslavia v. United States of America), the Court, rejecting the Request for the indication of provisional measures, concluded that it manifestly lacked jurisdiction and consequently ordered that the cases be removed from the List. In the eight other cases, the Court declared that it lacked prima facie jurisdiction (one of the prerequisites for the indication of provisional measures) and that it therefore could not indicate such measures.

In each of the eight cases which remained on the List, the Respondents filed preliminary objections to jurisdiction and admissibility.

In its Judgments of 15 December 2004, the Court observed that the question whether Serbia and Montenegro was or was not a State party to the Statute of the Court at the time of the institution of the proceedings was fundamental; for if Serbia and Montenegro were not such a party, the Court would not be open to it, unless it met the conditions prescribed in Article 35, paragraph 2, of the Statute.

The Court therefore had to examine whether the Applicant met the conditions for access to it laid down in Articles 34 and 35 of the Statute before examining the issues relating to the conditions laid down in Articles 36 and 37 of the Statute.

The Court pointed out that there was no doubt that Serbia and Montenegro was a State for the purpose of Article 34, paragraph 1, of the Statute. However, the objection had been raised by certain Respondents that, at the time when the Application was filed, Serbia and Montenegro did not meet the conditions set down in Article 35, paragraph 1, of the Statute, because it was not a Member of the United Nations at the relevant time. After recapitulating the sequence of events relating to the legal position of the applicant State vis-à-vis the United Nations, the Court concluded that the legal situation that obtained within the United Nations during the period 1992-2000 concerning the status of the Federal Republic of Yugoslavia, following the break-up of the Socialist Federal Republic of Yugoslavia, had remained ambiguous and open to different assessments. This situation had come to an end with a new development in 2000. On 27 October of that year, the Federal Republic of Yugoslavia requested admission to membership in the United Nations, and on 1 November, by General Assembly resolution 55/12, it was so admitted. The Applicant thus had the status of membership in the Organization as from 1 November 2000. However, its admission to the United Nations did not have, and could not have had, the effect of dating back to the time when the Socialist Federal Republic of Yugoslavia broke up and disappeared. The Court therefore concluded that the Applicant thus was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application to institute the proceedings in each of the cases before the Court on 29 April 1999. As it had not become a party to the Statute on any other basis, the Court was not open to it at that time under Article 35, paragraph 1, of the Statute.

The Court then considered whether it might have been open to the Applicant under paragraph 2 of Article 35. It noted that the words “treaties in force” in that paragraph were to be interpreted as referring to treaties which were in force at the time that the Statute itself came into force, and that consequently, even assuming that the Applicant was a party to the Genocide Convention when instituting proceedings, Article 35, paragraph 2, of the Statute did not provide it with a basis for access to the Court under Article IX of that Convention, since the Convention only entered into force on 12 January 1951, after the entry into force of the Statute.

In the cases against Belgium and the Netherlands, the Court finally examined the question whether Serbia and Montenegro was entitled to invoke the dispute settlement convention it had concluded with each of those States in the early 1930s as a basis of jurisdiction in those cases. The question was whether the conventions dating from the early 1930s, which had been concluded prior to the entry into force of the Statute, might rank as a “treaty in force” for purposes of Article 35, paragraph 2, and hence provide a basis of access. The Court first recalled that Article 35 of the Statute of the Court concerns access to the present Court and not to its predecessor, the Permanent Court of International Justice (PCIJ). It then observed that the conditions for transfer of jurisdiction from the PCIJ to the present Court are governed by Article 37 of the Statute. The Court noted that Article 37 applies only as between parties to the Statute under Article 35, paragraph 1. As it had already found that Serbia and Montenegro was not a party to the Statute when instituting proceedings, the Court accordingly found that Article 37 could not give it access to the Court under Article 35, paragraph 2, on the basis of the Conventions dating from the early 1930s, irrespective of whether or not those instruments were in force on 29 April 1999, the date of the filing of the Application.

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

29 April 1999

Available in:

English French

Written proceedings

Request for the indication of Provisional Measures

29 April 1999

Written Statement of the Observations and Submissions of the Federal Republic of Yugoslavia on the Preliminary Objections made by the Italian Republic

18 December 2002

Procedure(s):Preliminary objections

Available in:

English French

Judgment of 15 December 2004

Preliminary Objections

Procedure(s):Preliminary objections

Summary of the Order of 2 June 1999

Available in:

English French

Summary 2004/7

Summary of the Judgment of 15 December 2004

Available in:

English French

Legality of Use of Force (Yugoslavia v. United States of America)

OVERVIEW OF THE CASE

In each of the eight cases which remained on the List, the Respondents filed preliminary objections to jurisdiction and admissibility.

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

29 April 1999

Available in:

English French

Written proceedings

Request for the indication of Provisional Measures

29 April 1999

Written statement of the Observations and Submissions of the Federal Republic of Yugoslavia on the Preliminary Objections made by the French Republic

18 December 2002

Procedure(s):Preliminary objections

Available in:

English French

Summary 1999/6

Summary of the Order of 2 June 1999

Available in:

English French

Summary 2004/5

Summary of the Judgment of 15 December 2004

Available in:

English French

OVERVIEW OF THE CASE

The case was brought before the Court by Application by the United States following the occupation of its Embassy in Tehran by Iranian militants on 4 November 1979, and the capture and holding as hostages of its diplomatic and consular staff. On a request by the United States for the indication of provisional measures, the Court held that there was no more fundamental prerequisite for relations between States than the inviolability of diplomatic envoys and embassies, and it indicated provisional measures for ensuring the immediate restoration to the United States of the Embassy premises and the release of the hostages. In its decision on the merits of the case, at a time when the situation complained of still persisted, the Court, in its Judgment of 24 May 1980, found that Iran had violated and was still violating obligations owed by it to the United States under conventions in force between the two countries and rules of general international law, that the violation of these obligations engaged its responsibility, and that the Iranian Government was bound to secure the immediate release of the hostages, to restore the Embassy premises, and to make reparation for the injury caused to the United States Government. The Court reaffirmed the cardinal importance of the principles of international law governing diplomatic and consular relations. It pointed out that while, during the events of 4 November 1979, the conduct of militants could not be directly attributed to the Iranian State — for lack of sufficient information — that State had however done nothing to prevent the attack, stop it before it reached its completion or oblige the militants to withdraw from the premises and release the hostages. The Court noted that, after 4 November 1979, certain organs of the Iranian State had endorsed the acts complained of and decided to perpetuate them, so that those acts were transformed into acts of the Iranian State. The Court gave judgment, notwithstanding the absence of the Iranian Government and after rejecting the reasons put forward by Iran in two communications addressed to the Court in support of its assertion that the Court could not and should not entertain the case. The Court was not called upon to deliver a further judgment on the reparation for the injury caused to the United States Government since, by Order of 12 May 1981, the case was removed from the List following discontinuance.

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Judgments

Judgment of 24 May 1980

Procedure(s):Questions of jurisdiction and/or admissibility

English French

Summary 1980/1

Summary of the Judgment of 24 May 1980

Available in:

English French

On 27 February 1998, the Court delivered two Judgments on the preliminary objections raised by the United Kingdom and the United States of America. The Court first began by dismissing the Respondents’ respective objections to jurisdiction on the basis of the alleged absence of a dispute between the Parties concerning the interpretation or application of the Montreal Convention. It declared that it had jurisdiction on the basis of Article 14, paragraph 1, of that Convention to hear the disputes between Libya and the respondent States concerning the interpretation or application of the provisions of the Convention. The Court then went on to dismiss the objection to admissibility based on Security Council resolutions 748 (1992) and 883 (1993). Lastly, it found that the objection raised by each of the respondent States on the ground that those resolutions would have rendered the claims of Libya without object did not, in the circumstances of the case, have an exclusively preliminary character.

In June 1999, the Court authorized Libya to submit a Reply, and the United Kingdom and the United States to file Rejoinders. Those pleadings were filed by the Parties within the time-limits laid down by the Court and its President.

By two letters of 9 September 2003, the Governments of Libya and the United Kingdom on the one hand, and of Libya and the United States on the other, jointly notified the Court that they had “agreed to discontinue with prejudice the proceedings”. Following those notifications, the President of the Court, on 10 September 2003, made an Order in each case placing on record the discontinuance of the proceedings with prejudice, by agreement of the Parties, and directing the removal of the case from the Court’s List.

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

3 March 1992

Available in:

English French

Written proceedings

Request for the indication of Provisional Measures

3 March 1992

volume I

English

volume I, basic documents

English

volume II

English

volume III

English

Observations and Submissions of the Great Socialist People's Libyan Arab Jamahiriya on the Preliminary Objections of the United Kingdom (French version only)

22 December 1995

Judgment of 27 February 1998

Preliminary Objections

Procedure(s):Preliminary objections

English French

Summary 1998/2

Summary of the Judgment of 27 February 1998

Available in:

English French

OVERVIEW OF THE CASE

On 14 April and 5 June 1972, respectively, the United Kingdom and the Federal Republic of Germany instituted proceedings against Iceland concerning a dispute over the proposed extension by Iceland, as from 1 September 1972, of the limits of its exclusive fisheries jurisdiction from a distance of 12 to a distance of 50 nautical miles. Iceland declared that the Court lacked jurisdiction, and declined to be represented in the proceedings or file pleadings. At the request of the United Kingdom and the Federal Republic, the Court in 1972 indicated, and in 1973 confirmed, provisional measures to the effect that Iceland should refrain from implementing, with respect to their vessels, the new regulations regarding the extension of the zone of its exclusive fishing rights, and that the annual catch of those vessels in the disputed area should be limited to certain maxima. In Judgments delivered on 2 February 1973, the Court found that it possessed jurisdiction ; and in Judgments on the merits of 25 July 1974, it found that the Icelandic regulations. constituting a unilateral extension of exclusive fishing rights to a limit of 50 nautical miles were not opposable to either the United Kingdom or the Federal Republic, that Iceland was not entitled unilaterally to exclude their fishing vessels from the disputed area, and that the Parties were under mutual obligations to undertake negotiations in good faith for the equitable solution of their differences.

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

14 April 1972

Available in:

English

Written proceedings

Request for the Indication of Interim Measures submitted by the Government of the United Kingdom of Great Britain and Northern Ireland

19 July 1972

Procedure(s):Provisional measures

Available in:

Order of 18 August 1972

Fixing of time-limits: Memorial and Counter-Memorial

Available in:

English French Bilingual

English French Bilingual

Judgment of 25 July 1974

Merits

OVERVIEW OF THE CASE

On 9 May 1973, Australia and New Zealand each instituted proceedings against France concerning tests of nuclear weapons which France proposed to carry out in the atmosphere in the South Pacific region. France stated that it considered the Court manifestly to lack jurisdiction and refrained from appearing at the public hearings or filing any pleadings. By two Orders of 22 June 1973, the Court, at the request of Australia and New Zealand, indicated provisional measures to the effect, inter alia , that pending judgment France should avoid nuclear tests causing radioactive fall-out on Australian or New Zealand territory. By two Judgments delivered on 20 December 1974, the Court found that the Applications of Australia and New Zealand no longer had any object and that it was therefore not called upon to give any decision thereon. In so doing the Court based itself on the conclusion that the objective of Australia and New Zealand had been achieved inasmuch as France, in various public statements, had announced its intention of carrying out no further atmospheric nuclear tests on the completion of the 1974 series.

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application Instituting Proceedings

9 May 1973

Available in:

English French

Written proceedings

Oral proceedings

Verbatim record 1973 (bilingual version)

Oral Arguments on the Request for the Indication of Interim Measures of Protection - Minutes of the Public Sittings held at the Peace Palace, The Hague, on 21, 22, 23 and 25 May 1973, President Lachs presiding, and on 22 June 1973, Vice-President Ammoun presiding

Procedure(s):Provisional measures

Available in:

Original Language

Verbatim record 1974 (bilingual version)

Oral arguments on Jurisdiction and Admissibility - Minutes of the public sittings held at the Peace Palace, The Hague, on 4, 5, 6, 8, 9 and 11 July and 20 December 1974, President Lachs presiding

Procedure(s):Questions of jurisdiction and/or admissibility

Order of 12 July 1973

Application by Fiji for Permission to Intervene

Procedure(s):Intervention

Available in:

English French Bilingual

Declaration by Judge Gros (as appended immediately after the order)

English French Bilingual

Declaration by Judge Petrén (as appended immediately after the order)

English French Bilingual

Declaration by Judge Onyeama (as appended immediately after the order)

English French Bilingual

English French

Summary 1974/3

Summary of the Judgment of 20 December 1974

Available in:

English French

OVERVIEW OF THE CASE

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

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

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

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

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

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

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

23 August 1989

Available in:

English French

Annex to the Application instituting proceedings of the Government of the Republic of Guinea-Bissau (Arbitral Award of 31 July 1989)

23 August 1989

Available in:

English French

Written proceedings

Request for the indication of Provisional Measures (French version only)

18 January 1990

Procedure(s):Provisional measures

Available in:

French

Observations of the Government of Senegal on the Request by the Government of Guinea-Bissau for the indication of Provisional Measures (French version only)

7 February 1990

Verbatim record 1990/1 (bilingual version)

Minute of the public sitting held on Monday 12 February 1990, at 10 a.m., at the Peace Palace, President Ruda presiding

Procedure(s):Provisional measures

Available in:

Original Language

Verbatim record 1990/2 (bilingual version)

Minute of the public sitting held on Monday 12 February 1990, at 3 p.m., at the Peace Palace, President Ruda presiding

Order of 1 November 1989

Fixing of time-limits: Memorial and Counter-Memorial

Available in:

English French Bilingual

Order of 2 March 1990

Request for the Indication of Provisional Measures

Procedure(s):Provisional measures

Available in:

English French Bilingual

Judgments

Judgment of 12 November 1991

Available in:

English French Bilingual

Summaries of Judgments and Orders

Summary 1990/1

Summary of the Order of 2 March 1990

Available in:

English French

Summary 1991/2

Summary of the Judgment of 12 November 1991

Available in:

English French

See also

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom)

OVERVIEW OF THE CASE

This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Application instituting proceedings

3 March 1992

Available in:

English French

Written proceedings

Request for the indication of Provisional Measures

3 March 1992

Observations and Submissions of the Great Socialist People's Libyan Arab Jamahiriya on the Preliminary Objections of the United States of America (French version only)

22 December 1995

(bilingual version) Translation

Orders

Order of 14 April 1992

Request for the indication of Provisional Measures

Procedure(s):Provisional measures

Available in:

English French Bilingual

Judgments

Judgment of 27 February 1998

Preliminary Objections

Procedure(s):Preliminary objections

Available in:

English French Bilingual

Summaries of Judgments and Orders

Summary 1992/2

Summary of the Order of 14 April 1992

Available in:

English French

Summary 1998/1

Summary of the Judgment of 27 February 1998

Available in:

English French

Subscribe to Provisional measures

Provisional measures

OVERVIEW OF THE CASE

Institution of proceedings

2 March 1999

Available in:

Written proceedings

2 March 1999

Procedure(s):Provisional measures

Available in:

16 September 1999

Procedure(s):Questions of jurisdiction and/or admissibility

Available in:

27 March 2000

Procedure(s):Questions of jurisdiction and/or admissibility

Available in:

Oral proceedings

Public sitting held on Monday 13 November 2000, at 10 a.m., at the Peace Palace, President Guillaume presiding

Available in:

Translation

Public sitting held on Monday 13 November 2000, at 3 p.m., at the Peace Palace, President Guillaume presiding

Available in:

Translation

Public sitting held on Tuesday 14 November 2000, at 10 a.m., at the Peace Palace, President Guillaume presiding

Available in:

Translation

Public sitting held on Tuesday 14 November 2000, at 3 p.m., at the Peace Palace, President Guillaume presiding

Available in:

Translation

Public sitting held on Thursday 16 November 2000, at 10 a.m., at the Peace Palace, President Guillaume presiding

Available in:

Translation

Public sitting held on Friday 17 November 2000, at 2 p.m., at the Peace Palace, President Guillaume presiding

Available in:

Translation

Other documents

20 October 2000

Available in:

7 December 2000

Available in:

Orders

Request for the Indication of Provisional Measures

Procedure(s):Provisional measures

Available in:

Declaration of Judge Oda

Separate Opinion of President Schwebel

Fixing of time-limits: Memorial and Counter-Memorial

Available in:

Judgments

Mertis

Available in:

Declaration of President Guillaume (as appended immediately after the judgment)

Separate opinion of Vice-President Shi

Dissenting opinion of Judge Oda

Separate opinion of Judge Koroma

Separate opinion of Judge Parra-Aranguren

Dissenting opinion of Judge Buergenthal

Summaries of Judgments and Orders

Summary of the Order of 5 March 1999

Available in:

Summary of the Judgment of 27 June 2001

Available in:

Press releases

2 March 1999

Germany brings a case against the United States of America and requests the indication of provisional measures

Available in:

3 March 1999

LaGrand (Germany v. United States of America) - Request for the indication of provisional measures - Court to give its decision today, Wednesday 3 March 1999 at 7 p.m.

Available in:

3 March 1999

LaGrand (Germany v. United States of America) - Provisional measures - The Court calls on the United States to take measures to prevent the execution of Walter LaGrand pending a final decision

Available in:

8 March 1999

LaGrand (Germany v. United States of America) - Fixing of time-limits for the filing of written pleadings

Available in:

27 September 2000

LaGrand (Germany v. United States of America) - The Court will hold public hearings from Monday 13 to Friday 17 November 2000

Available in:

17 November 2000

LaGrand (Germany v. United States of America) - Conclusion of the public hearings on the merits of the dispute - Court ready to consider its Judgment

Available in: