Amendments in the ICJ Rules

Article 43^*1

          1. Whenever the construction of a convention to which States other than those concerned in the case are parties may be in question within the meaning of Article 63, paragraph 1, of the Statute, the Court shall consider what directions shall be given to the Registrar in the matter.

          2. Whenever the construction of a convention to which a public international organization is a party may be in question in a case before the Court, the Court shall consider whether the Registrar shall so notify the public international organization concerned.  Every public international organization notified by the Registrar may submit its observations on the particular provisions of the convention the construction of which is in question in the case.

          3. If a public international organization sees fit to furnish its observations under paragraph 2 of this Article, the procedure to be followed shall be that provided for in Article 69, paragraph 2, of these Rules.

Article 52^{*1 2}

          1. The original of every pleading shall be signed by the agent and filed in the Registry.  It shall be accompanied by a certified copy of the pleading, documents annexed, and any translations, for communication to the other party in accordance with Article 43, paragraph 4, of the Statute, and by the number of additional copies required by the Registry, but without prejudice to an increase in that number should the need arise later.

          2. All pleadings shall be dated.  When a pleading has to be filed by a certain date, it is the date of the receipt of the pleading in the Registry which will be regarded by the Court as the material date.

          3. The correction of a slip or error in any document which has been filed may be made at any time with the consent of the other party or by leave of the President.  Any correction so effected shall be notified to the other party in the same manner as the pleading to which it relates.

Subsection 2. Preliminary Objections

Article 79^{* 1}

          1. Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits, shall be made in writing as soon as possible, and not later than three months after the delivery of the Memorial.  Any such objection made by a party other than the respondent shall be filed within the time-limit fixed for the delivery of that party's first pleading.

          2. Notwithstanding paragraph 1 above, following the submission of the application and after the President has met and consulted with the parties, the Court may decide that any questions of jurisdiction and admissibility shall be determined separately.

          3. Where the Court so decides, the parties shall submit any pleadings as to jurisdiction and admissibility within the time-limits fixed by the Court and in the order determined by it, notwithstanding Article 45, paragraph 1.

          4. The preliminary objection shall set out the facts and the law on which the objection is based, the submissions and a list of the documents in support; it shall mention any evidence which the party may desire to produce.  Copies of the supporting documents shall be attached.

          5. Upon receipt by the Registry of a preliminary objection, the proceedings on the merits shall be suspended and the Court, or the President if the Court is not sitting, shall fix the time-limit within which the other party may present a written statement of its observations and submissions; documents in support shall be attached and evidence which it is proposed to produce shall be mentioned.

          6. Unless otherwise decided by the Court, the further proceedings shall be oral.

          7. The statements of facts and law in the pleadings referred to in paragraphs 4 and 5 of this Article, and the statements and evidence presented at the hearings contemplated by paragraph 6, shall be confined to those matters that are relevant to the objection.

          8. In order to enable the Court to determine its jurisdiction at the preliminary stage of the proceedings, the Court, whenever necessary, may request the parties to argue all questions of law and fact, and to adduce all evidence, which bear on the issue.

          9. After hearing the parties, the Court shall give its decision in the form of a judgment, by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character.  If the Court rejects the objection or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings.

          10. Any agreement between the parties that an objection submitted under paragraph 1 of this Article be heard and determined within the framework of the merits shall be given effect by the Court.

Subsection 3. Counter-Claims

Article 80^{* 1}

          1. The Court may entertain a counter-claim only if it comes within the jurisdiction of the Court and is directly connected with the subject-matter of the claim of the other party.

          2. A counter-claim shall be made in the Counter-Memorial and shall appear as part of the submissions contained therein.  The right of the other party to present its views in writing on the counter-claim, in an additional pleading, shall be preserved, irrespective of any decision of the Court, in accordance with Article 45, paragraph 2, of these Rules, concerning the filing of further written pleadings.

          3. Where an objection is raised concerning the application of paragraph 1 or whenever the Court deems necessary, the Court shall take its decision thereon after hearing the parties.

Commercial arbitration - Competence-Competence

Main purpose of the principle of Competence-Competence:

1. Allocation of jurisdiction between the arbitral tribunal
2. timing of the court to intervene
3. nature of intervention

Is it possible to derogate from this principle? yes - Section 30 of UK arbitration law provides: "unless parties decide otherwise".  NY Convention  is neutral regarding competence- competence, although its true that some provisions -  articles 2 and 5 imply that both arbitral tribunal and court have a “say” on deciding about jurisdiction. Article 5.3 of the 1961 European convention has express provision. Relevant provisions in UNCITRAL ML are articles 8 and 16. Article 16 (1) refers to the positive effect of this principle, and 16 (3) decision on jurisdiction either as a preliminary question or together with the merits. There is 30 days to appeal in the court – after having received the notice (on decision of jurisdiction).

Article 8. Arbitration agreement and substantive claim before court

(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his fi rst statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

(2) Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.

Article 16. Competence of arbitral tribunal to rule on its jurisdiction

(1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail  ipso jure the invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.

(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article either as a preliminary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within thirty days after having received notice of that ruling, the court specifi ed in article 6 to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.

In Fomento, the Federal Tribunal held that the lis pendens provisions of Article 9 PILA applied to international arbitrations in Switzerland, requiring an arbitral tribunal to stay arbitration proceedings while an action filed earlier in a foreign court was pending. The decision caused concern that parties could now race to initiate state court litigation elsewhere, thereby forcing the stay of arbitral proceedings in Switzerland. Fomento triggered an amendment contained in Article 186(1)bis PILA.

Section 7 of the UK 1996 Arbitration Act  provides:

"Unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement (whether or not in writing) shall not be regarded as invalid, non-existent or ineffective because that other agreement is invalid, or did not come into existence or has become ineffective, and it shall for that purpose be treated as a distinct agreement."

A major evolutionary step towards a recognition that an arbitration clause is a separate contract which survives the termination of the main contract was taken in Harbour v Kansa [1993] 1 Lloyds Rep 81.  The question of the separability of an arbitration clause was considered again in the recent Court of Appeal case of Fiona Trust & Holding Corporation & Others v Yuri Privalov & Others [2007] EWCA Civ 20 (24 January 2007).

UK Act distinguishes clearly between separability (in arbitration agreement, substantive rule) and competence-competence (in jurisdictional part).

3 scenarios:

1) Rule on own jurisdiction (s 30) plus judicial review (s 67), Party has to object during arbitration proceedings (s 73)

2) Section 32 - refers to the court for clarification of issue – determination of the preliminary question, here the party may refer to the court to determine the issue. – When can you file the case: the parties have agreed to go away from arbitration, second possibility: tribunal allows plus UK court would be satisfied that this would save costs, time; there are good reasons to do so.

3) Section 72 – saving for right of persons who takes no part in proceedings, by taking steps party will be barred from challenging later. Danger with this clause – the court is taking too much power, has been applied very restrictively by the UK courts. Typical situation is when party alleging not being a party to arbitration agreement for injunctions.

Other important articles:

Section 30. - Competence of tribunal to rule on its own jurisdiction.

(1) Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to -  (a) whether there is a valid arbitration agreement,

(c) what matters have been submitted to arbitration in accordance with the arbitration (2) Any such ruling may be challenged by any available arbitral process of appeal or review or in accordance with the provisions of this Part.

Section 32. - Determination of preliminary point of jurisdiction.

(1) The court may, on the application of a party to arbitral proceedings (upon notice to the other parties), determine any question as to the substantive jurisdiction of the tribunal. A party may lose the right to object (see section 73).

(2) An application under this section shall not be considered unless -

(a) it is made with the agreement in writing of all the other parties to the proceedings, or

(b) it is made with the permission of the tribunal and the court is satisfied -

(i) that the determination of the question is likely to produce substantial savings in costs,

(ii) that the application was made without delay, and

(iii) that there is good reason why the matter should be decided by the court.

(3) An application under this section, unless made with the agreement of all the other parties to the proceedings, shall state the grounds on which it is said that the matter should be decided by the court.

(4) Unless otherwise agreed by the parties, the arbitral tribunal may continue the arbitral proceedings and make an award while an application to the court under this section is pending.

(5) Unless the court gives leave, no appeal lies from a decision of the court whether the conditions specified in subsection (2) are met.

(6) The decision of the court on the question of jurisdiction shall be treated as a judgment of the court for the purposes of an appeal. But no appeal lies without the leave of the court which shall not be given unless the court considers that the question involves a point of law which is one of general importance or is one which for some other special reason should be considered by the Court of Appeal.

Section 67. - Challenging the award: substantive jurisdiction.

(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court -

(a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or

(b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3).

(2) The arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction.

(3) On an application under this section challenging an award of the arbitral tribunal as to its substantive jurisdiction, the court may by order  (a) confirm the award,  (b) vary the award, or  (c) set aside the award in whole or in part.

(4) The leave of the court is required for any appeal from a decision of the court under this section.

Section 72. - Saving for rights of person who takes no part in proceedings.

(1) A person alleged to be a party to arbitral proceedings but who takes no part in the proceedings may question -

(a) whether there is a valid arbitration agreement,

(b) whether the tribunal is properly constituted, or

(c) what matters have been submitted to arbitration in accordance with the arbitration agreement, by proceedings in the court for a declaration or injunction or other appropriate relief.

(2) He also has the same right as a party to the arbitral proceedings to challenge an award (a) by an application under section 67 on the ground of lack of substantive jurisdiction in relation to him, or (b) by an application under section 68 on the ground of serious irregularity (within the meaning of that section) affecting him; and section 70(2) (duty to exhaust arbitral procedures) does not apply in his case.

Section 73. - Loss of right to object.

(1) If a party to arbitral proceedings takes part, or continues to take part, in the proceedings without making, either forthwith or within such time as is allowed by the arbitration agreement or the tribunal or by any provision of this Part, any objection -  

(a) that the tribunal lacks substantive jurisdiction,  

(b) that the proceedings have been improperly conducted,

(c) that there has been a failure to comply with the arbitration agreement or with any provision of this Part, or

(d) that there has been any other irregularity affecting the tribunal or the proceedings, he may not raise that objection later, before the tribunal or the court, unless he shows that, at the time he took part or continued to take part in the proceedings, he did not know and could not with reasonable diligence have discovered the grounds for the objection.

(2) Where the arbitral tribunal rules that it has substantive jurisdiction and a party to arbitral proceedings who could have questioned that ruling -

(a) by any available arbitral process of appeal or review, or

(b) by challenging the award,  does not do so, or does not do so within the time allowed by the arbitration agreement or any provision of this Part, he may not object later to the tribunal's substantive jurisdiction on any ground which was the subject of that ruling.

Sources: http://www.alway-associates.co.uk/legal-update/article.asp?id=132

French code on civil procedure http://www.iaiparis.com/lois_en.asp

 

French code on civil procedure provides:

Article 1458 When a dispute submitted to an arbitral tribunal by virtue of an arbitration agreement is brought before a national court, such court shall decline jurisdiction. If the arbitral tribunal has not yet been seized of the matter, the court shall also decline jurisdiction unless the arbitration agreement is manifestly void. In neither case may the court decline jurisdiction on its own motion.

Article 186(1)bis of the Swiss Private International Law (PILA) provides that an arbitral tribunal "shall decide on its jurisdiction notwithstanding an action on the same matter already pending before a State Court or another Arbitral Tribunal, unless there are serious reasons to stay the proceedings."

 

Pulp Mills on the River Uruguay (Argentina v. Uruguay)

The pulp mill dispute is an ongoing dispute between private citizens, organizations, and the governments of Argentina and Uruguay concerning the construction of pulp mills on the Uruguay river. As a diplomatic, economic, and public relations conflict between both parties, the dispute has also affected tourism and transportation as well as the otherwise amicable relations between the two countries. Proceedings was brought before the ICJ as a case formally named Pulp Mills on the River Uruguay (Argentina v. Uruguay) On January 23, 2007, the International Court of Justice (ICJ) rejected, by 14 votes against one, Uruguay’s request for “provisional measures” against Argentina —a form of injunctive relief—aimed at putting an immediate end to blockades of bridges and roads. The ICJ in its ruling stated: "(the ICJ) is not convinced that the blockades risk prejudicing irreparably the rights which Uruguay claims from the 1975 Statute and adds that it has not shown that, were there such a risk, it would be imminent. The Court consequently finds that the circumstances of the case are not such as to require the indication of the first provisional measure requested by Uruguay (to prevent or end the interruption of transit between the two States and inter alia the blockading of the bridges and roads linking them"

In 2010 The Court found that Uruguay has breached its procedural obligations to co-operate with Argentina and the Administrative Commission of the River Uruguay (CARU) during the development of plans for the CMB (ENCE) and Orion (Botnia) pulp mills. The Court declared that Uruguay has not breached its substantive obligations for the protection of the environment provided for by the Statute of the River Uruguay by authorizing the construction and commissioning of the Orion (Botnia)

Passage through the Great Belt (FINLAND v. DENMARK), ICJ

“Urgency” of provisional measurs may also suggest a matter of substance, therefore justifying the need for procedural measures to be adopted by a party to the dispute. Judicial examples of this situation for the ICJ would include the 1991 Passage though the Green Belt case between Finland and Denmark.

In its Order, the Court recalls that on 17 May 1991 Finland instituted proceedings against Denmark in respect of a dispute concerning passage through the Great Belt (Storebaelt), and the project by the Government of Denmark to construct a fixed traffic connection for both road and rail traffic across the West and East Channels of the Great Belt. The effect of this project, and in particular of the planned high-level suspension bridge over the East Channel, would be permanently to close the Baltic for deep draught vessels of over 65 metres' height, thus preventing the passage of such drill ships and oil rigs manufactured in Finland as require more than that clearance. The Government of Finland requested the Court to adjudge.  In an Order made in the case concerning the Passage through the Great Belt (Finland v. Denmark) the Court found, unanimously, that the circumstances, as they presented themselves to the Court, were not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.

Source: http://www.icj-cij.org/docket/index.php?sum=433&code=fd&p1=3&p2=3&case=86&k=a5&p3=5

Malaysia v. Singapore

The dispute began in 1979 and was largely resolved by the International Court of Justice in 2008, which opined that Pedra Branca belonged to Singapore and Middle Rocks belonged to Malaysia. In 1998 the two countries agreed on the text of a Special Agreement that was needed to submit the dispute to the ICJ. The Special Agreement was signed in February 2003, and the ICJ formally notified of the Agreement in July that year. The hearing before the ICJ was held over three weeks in November 2007 under the name Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore).

On 23 May 2008, the Court ruled that Pedra Branca is under Singapore's sovereignty, while Middle Rocks belongs to Malaysia. As regards South Ledge, the Court noted that it falls within the apparently overlapping territorial waters generated by mainland Malaysia, Pedra Branca and Middle Rocks. As it is a maritime feature visible only at low tide, it belongs to the state in the territorial waters of which it is located. Malaysia and Singapore have established what they have named the Joint Technical Committee to delimit the maritime boundary in the area around Pedra Branca and Middle Rocks, and to determine the ownership of South Ledge.

Source: http://en.wikipedia.org/wiki/Pedra_Branca_dispute#Procedural_matters

PCIJ important cases

1923

S.S. Wimbledon Case

The Treaty of Versailles had said that the Kiel Canal in Germany had to be open to all shipping.  The French and German governments came to the PCIJ because Germany had stopped the SS Wimbledon using the canal, because it was carrying weapons to Poland.

The Court ruled that Germany was wrong to close the Canal to the SS Wimbledon, and ordered the German government to pay 140,000 francs reparations to France.

1924-7

Mavrommatis Palestine Concessions Case

The Greek government complained that the British government in Palestine was refusing to honor contracts (to set up lighting and water and tramways in the city of Jerusalem) awarded before 1914 to a Greek citizen, Mr Mavrommatis. 

The German government complained that the Polish government had been taking over land owned by Germans in the part of Upper Silesia given to Poland after the Treaty of Versailles.

The PCIJ found that the Polish government had no right to do so, and ordered the Poles to return the land.

1927

Case Concerning the Factory at Chorzow
 

The German government complained that the Polish government had taken over a factory owned by a German company in the part of Upper Silesia given to Poland after the Treaty of Versailles.

The PCIJ found that the Polish government had no right to do so, and ordered the Poles to pay compensation.

1927-9

Belgium-China Case

A Treaty of 1865, between China and Belgium, included clauses which it said could be ‘denounced’ (i.e. cancelled) after 10 years.  In 1926, the Chinese government denounced these clauses.  Belgium complained to the PCIJ, claiming that the treaty did not give China the right to do so without negotiating with the Belgian government. 

The case came before the PCIJ six times, before the Belgian government withdrew it case.

1927

Lotus Case

The French government complained to the PCIJ when the Turks put a French captain who had sank a Turkish steamer on trial for negligence.  The French claimed that Turkey did not have that right since the incident had happened on the High Seas.

The PCIJ ruled that the Turks DID have the right, even though the incident had not happened in Turkish waters.

1929

Repayment of loans

Complaints were brought by the French government against the governments of Brazil and Serbia, which had started repaying the interest on loans in government bonds.

The PCIJ ruled that interest had to be paid in currency, and at the exchange rates of the time.

Source: http://www.johndclare.net/league_of_nations3_PCIJ.htm

The PCIJ ruled that Mr Mavrommatis had the right to have his contracts ‘readapted’, but refused to award the Greek government damages.

1925-7

German Interests in Polish Upper Silesia

ICJ: Third Party Intervention

Article 62 "Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene."

Article 63: "Whenever the construction of a convention to which States other than those concerned in the case are parties is in question, the Registrar shall notify all such States forthwith."

The Court has taken a restrictive approach to third party intervention. For what concerns intervention under article 62 (interest of legal nature), the Court denied requests to intervene in four cases (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene by Malta, Judgment, ICJ Reports 1981, at 3; Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene by Italy, Judgment, ICJ Reports 1984, at 3; Nuclear Tests (Australia v. France) Application for Permission to Intervene by Fiji, Order of July 12, 1973, ICJ Reports 1973 at 320; Nuclear Tests (New Zealand v. France) Application for Permission to Intervene by Fiji, Order of July 12, 1973, ICJ Reports 1973 at 324.), while a Chamber of the Court permitted a limited intervention to Nicaragua in a maritime aspect of the Land, Island and Maritime Frontier Dispute (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application for Permission to Intervene, Order of February 28, 1990, ICJ Reports 1990, at 3.). The full Court permitted a limited intervention of Equatorial Guinea in the case concerning Land and Maritime Boundary between Cameroon and Nigeria (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Order of October 21, 1999.).

 Conversely, for what concerns intervention under article 63 (construction of a convention), the Court has rejected it in one instance (Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US), (request by El Salvador) Declaration of Intervention, Order of October 4, 1984, ICJ Reports 1984, at 215) and allowed it in another (Haya de le Torre (Colombia v. Peru), (request by Cuba), Judgment, ICJ Reports 1951, at 71.) .

Source: http://www.pict-pcti.org/matrix/discussion/icj/icj_thirdparty.htm

Land, island and maritime frontier dispute (El Salvador/Honduras: Nicaragua intervening

The origins of the boundary dispute between El Salvador and Honduras date back to the eighteenth century when colonial boundaries were ill defined. The issue continued to fester in the twentieth century and was a contributing factor in the outbreak of war between the two countries in 1969. The General Peace Treaty, signed by El Salvador and Honduras on October 30, 1980, in Lima, Peru, represented the first real breakthrough on this border dispute. The peace treaty stated that the two parties agreed to submit the boundary dispute to the International Court of Justice (ICJ) in The Hague if they failed to reach a border agreement after five years of negotiations. By 1985 the two countries had not reached an agreement. In 1986 the case reached the ICJ, which handed down a ruling on September 11, 1992.Both countries accepted the ICJ decision, and a commission was established to decide the citizenship of residents of the bolsones. In this case the Court permitted a limited intervention to Nicaragua in a maritime aspect.

HAYA DE LA TORRE CASE Judgment of 13 June 1951

The Haya de la Torre case between Colombia and Peru with Cuba as intervening Party, was brought before the Court under the following circumstances:

In a Judgment delivered on November 20th, 1950, the Court had defined the legal relations between Colombia and Peru in regard to questions which those States had submitted to it, concerning diplomatic asylum in general and, in particular, the asylum granted on January 3rd/4th, 1949 by the Colombian Ambassador at Lima to Victor Raul Haya de la Torre; the Court had found that, in this case, the asylum had not been granted in conformity with the Convention on Asylum signed at Havana in 1928. After the Judgment had been delivered, Peru requested Colombia to execute it, and called upon her to put an end to a protection improperly granted by surrendering the refugee. Colombia replied that to deliver the refugee would be not only to disregard the Judgment of November 20th, but also to violate the Havana Convention and she instituted proceedings before the Court by an Application which was filed on December 13th, 1950.

In her Application, and during the procedure, Colombia asked the Court to state in what manner the Judgment of November 20th, 1950, was to be executed, and, furthermore, to declare that, in executing that Judgment, she was not bound to surrender Haya de la Torre. Peru, for her part, also asked the Court to state in what manner Colombia should execute the Judgment. She further asked, first, the rejection of the Colombian Submission requesting the Court to state, solely, that she was not bound to surrender Haya de la Torre, and, secondly, for a declaration that the asylum ought to have ceased immediately after the delivery of the Judgment of November 20th, 1950, and that it must in any case cease forthwith, in order that Peruvian justice might resume its normal course which had been suspended. ICJ found that that it is not part of the Court's judicial functions to make a choice among the different ways in which the asylum may be brought to an end; that Colombia is under no obligation to surrender Haya de la Torre to the Peruvian authorities; that the asylum ought to have ceased after the delivery of the Judgment of November 20th, 1950, and must be brought to an end.

In its Judgment, the Court examines, in the first place, the admissibility of the Cuban Government's intervention. That Government, availing itself of the right which the Statute of the Court confers on States parties to a convention, the interpretation of which is in issue, had filed a Declaration of Intervention in which it set forth its views concerning the interpretation of the Havana Convention. The Government of Peru contended that the Intervention was inadmissible: that it was out of time, and was really in the nature of an attempt by a third State to appeal against the Judgment of November 20th. In regard to that point, the Court observes that every intervention is incidental to the proceedings in a case, that, consequently, a declaration filed as an intervention only acquires that character if it actually relates to the subject-matter of the pending proceedings. The subject matter of the present case relates to a new question - the surrender of Haya de la Torre to the Peruvian authorities - which was completely outside the Submissions of the parties and was in consequence not decided by the Judgment of November 20th. In these circumstances, the point which it is necessary to ascertain is whether the object of the intervention is the interpretation of the Havana Convention in regard to the question whether Colombia is under an obligation to surrender the refugee: as according to the representative of the Government of Cuba the intervention was based on the fact that it was necessary to interpret a new aspect of the Havana Convention, the Court decided to admit it.

Source: http://www.humanrights.is/the-human-rights-project/humanrightscasesandmaterials/cases/internationalcases/internationalcourt/nr/1927

Genocide Convention Case (Bosnia and Herzegovina v. Serbia and Montenegro)

The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), case of  26 February 2007 related to Serbia's alleged attempts to wipe out the Bosnian Muslim population of Bosnia. The ICJ , among other things,  confirmed the ICTY judgment that the Srebrenica massacre was genocide, stating:  The Court concludes that the acts committed at Srebrenica falling within Article II (a) and (b) of the Convention were committed with the specific intent to destroy in part the group of the Muslims of Bosnia and Herzegovina as such; and accordingly that these were acts of genocide, committed by members of the VRS in and around Srebrenica from about 13 July 1995.

The Court found - although not unanimously - that Serbia was neither directly responsible for Srebrenica genocide, nor that it was complicit in it, but it did rule that Serbia had committed the breach the Genocide Convention by failing to prevent the Srebrenica genocide, for not cooperating with the ICTY in punishing the perpetrators of the genocide, in particular in respect of General Ratko Mladić, and for violating its obligation to comply with the provisional measures ordered by the Court. On this respect the Court finds that in respect of the massacres at Srebrenica in July 1995, the Respondent failed to fulfil the obligations indicated in the Court's Order of 8 April 1993 and reaffirmed in its Order of 13 September 1993 to take all measures within its power to prevent commission of the crime of genocide and to ensure that any organizations and persons which may be subject to its influence do not commit any acts of genocide.

Source: http://www.icj-cij.org/presscom/index.php?pr=1897&pt=1&p1=6&p2=1

EAST TIMOR (PORTUGAL v. AUSTRALIA) Judgment of 30 June 1995

In its Judgment on the case concerning East Timor (Portugal v. Australia), the Court found that it could not exercise the jurisdiction conferred upon it by the declarations made by the Parties under Article 36, paragraph 2, of its Statute to adjudicate upon the dispute referred to it by the Application of the Portuguese Republic.  Decision gives a short description of the history of the involvement of Portugal and Indonesia in the Territory of East Timor and of a number of Security Council and General Assembly resolutions concerning the question of East Timor. It further describes the negotiations between Australia and Indonesia leading to the Treaty of 11 December 1989, which created a "Zone of Cooperation... in an area between the Indonesian Province of East Timor and Northern Australia". On 22 February 1991 Portugal instituted proceedings against Australia concerning "certain activities of Australia with respect to East Timor". According to the Application Australia had, by its conduct, "failed to observe -- the obligation to respect the duties and powers of [Portugal as] the administering Power [of East Timor].. and... the right of the people of East Timor to self-determination and the related rights". In consequence, according to the Application, Australia had "incurred international responsibility vis-à-vis both the people of East Timor and Portugal". As the basis for the jurisdiction of the Court, the Application refers to the declarations by which the two States have accepted the compulsory jurisdiction of the Court under Article 36, paragraph 2, of its Statute. In its Counter-Memorial, Australia raised questions concerning the jurisdiction of the Court and the admissibility of the Application.

The Court considered Australia's principal objection, to the effect that Portugal's Application would require the Court to determine the rights and obligations of Indonesia. Australia contends that the jurisdiction conferred upon the Court by the Parties' declarations under Article 36, paragraph 2, of the Statute would not enable the Court to act if, in order to do so, the Court were required to rule on the lawfulness of Indonesia's entry into and continuing presence in East Timor, on the validity of the 1989 Treaty between Australia and Indonesia, or on the rights and obligations of Indonesia under that Treaty, even if the Court did not have to determine its validity. In support of its argument, it refers to the Court's Judgment in the case of the Monetary Gold Removed from Rome in 1943. Portugal agrees that if its Application required the Court to decide any of these questions, the Court could not entertain it. The Parties disagree, however, as to whether the Court is required to decide any of these questions in order to resolve the dispute referred to it.

Portugal contends first that its Application is concerned exclusively with the objective conduct of Australia, which consists in having negotiated, concluded and initiated performance of the 1989 Treaty with Indonesia, and that this question is perfectly separable from any question relating to the lawfulness of the conduct of Indonesia.

Having carefully considered the argument advanced by Portugal which seeks to separate Australia's behaviour from that of the Indonesia, the Court concludes that Australia's behaviour cannot be assessed without first entering into the question why it is that Indonesia could not lawfully have concluded the 1989 Treaty, while Portugal allegedly could have done so; the very subject-matter of the Court's decision would necessarily be a determination whether, having regard to the circumstances in which Indonesia entered and remained in East Timor, it could or could not have acquired the power to enter into treaties on behalf of East Timor relating to the resources of its continental shelf. The Court could not make such a determination in the absence of the consent of Indonesia.

The Court accordingly finds that it is not required to consider Australia's other objections and that it cannot rule on Portugal's claims on the merits, whatever the importance of the questions raised by those claims and of the rules of international law which they bring into play. The Court recalls in any event that it has taken note in the Judgment that, for the two Parties, the Territory of East Timor remains a non-self governing territory and its people has the right to self-determination.

Source:
http://www.icj-cij.org/docket/index.php?sum=430&code=pa&p1=3&p2=3&case=84&k=66&p3=5

Fisheries Jurisdiction (Spain v. Canada)

On 28 March 1995 Spain filed an application instituting proceedings against Canada with respect to a dispute relating to the Canadian Coastal Fisheries Protection Act (as amended on 12 May  1994), to the implementing regulations of that Act and to certain measures taken on the basis of that legislation. The dispute deals in particular with the boarding on the high seas, on 9 March 1995, of a fishing boat, the Estai, flying the Spanish flag and with a Spanish crew, by a Canadian patrol boat, the Cape Roger.

Spain alleged that the boarding of the Estai by the Cape Roger occurred "after successive attempts at boarding by gunboats manned by individuals armed with automatic weapons". It added that "the boat and its crew were forcibly escorted away and held incommunicado in the Canadian port of St. John's, Newfoundland, where the captain of the boat was imprisoned and subjected to criminal proceedings for having fished on the high seas". In its Application, Spain indicated that by this action Canada had violated the principles of general international law which proclaim freedom of navigation and freedom of fishing on the high seas, as well as the exclusive jurisdiction of the flag State over ships on the high seas. Spain also contended that Canada had breached the norms of general international law which reject the right of hot pursuit on the high seas and prohibit imprisonment and corporal punishment as penalties in case of violations of fishing laws and regulations. Spain maintained that by the Canadian Act "an attempt was made to impose on all persons on board foreign ships a broad prohibition on fishing in the NAFO [Northwest Atlantic Fisheries Organization] Regulatory Area, that is, on the high seas".

As a basis of the Court's jurisdiction, Spain referred to the declarations of both States by which they accept that jurisdiction as compulsory (Article 36, paragraph 2, of the Statute of the Court).That provision, known as the "Optional Clause," provides that the states parties to the ICJ Statute (currently all the 185 UN member states and Nauru and Switzerland) may at any time file with the UN Secretary-General declarations stating that they recognize as compulsory, without special agreement, in relation to any other state accepting the same obligation, the Court's jurisdiction in all legal disputes concerning the interpretation of a treaty, any question of international law, the existence of any fact which, if established, would constitute a breach of an international obligation, or the nature or extent of the reparation to be made for the breach of an international obligation.   On 21 April 1995, Canada informed the Court that it lacked jurisdiction to deal with the case because of a reservation made in its Declaration recognizing the compulsory jurisdiction of the Court of 10 May 1994. In this Declaration, Canada said the Court had a compulsory jurisdiction "over all disputes . . . other than . . . disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area . . . and the enforcement of such measures".

On December 4, 1998, the International Court of Justice (ICJ) ruled (12-5) that it lacks jurisdiction to adjudicate the dispute brought by the Kingdom of Spain against Canada in 1995. The Court agreed with Canada that the words of an Optional Clause declaration, including a reservation contained therein, must be interpreted in a natural and reasonable way, having due regard to the intention of the state making the reservation at the time when it accepted the Court's compulsory jurisdiction. Such state's intention, in turn, may be deduced not only from the text of the relevant clause, but also from the context in which the clause is to be read, the circumstances of its preparation, and the purposes intended to be served. The Court thus stressed that a reservation to a declaration should be interpreted in a manner compatible with the effect sought by the reserving state; reservations operate to define the parameters of a state's acceptance of the Court's compulsory jurisdiction.In offering its interpretation of Canada's reservation, the Court considered that the reservation's purpose was to prevent it from exercising jurisdiction over matters that might arise with regard to the international legality of the Canadian legislation and its implementation. The Court addressed what it saw as Spain's four main arguments in favor of jurisdiction: (1) the dispute brought by Spain falls outside the terms of the Canadian reservation by reason of its subject-matter; (2) the Canadian legislation cannot, in international law, constitute "conservation and management measures;" (3) the reservation covers only "vessels" that are stateless or flying a flag of convenience; and (4) the pursuit, boarding and seizure of the Spanish ship cannot be regarded in international law as the enforcement of conservation and management measures. Court concluded that the dispute submitted to it by Spain constitutes a dispute "arising out of" and "concerning" "conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area" and "the enforcement of such measures." Consequently, the Court concluded that this dispute comes within the terms of the Canadian reservation and found, by 12 votes to 5, that it lacks jurisdiction to adjudicate upon the dispute. 

This is the first time since the judgment in Aegean Sea Continental Shelf (Greece v. Turkey) rendered in 1978 that the Court has found, at a preliminary stage, that it is without jurisdiction to entertain an application. The Court's refusal to entertain Portugal's Application in the case concerning East Timor (Portugal v. Australia) in 1995, although technically a dismissal, was based on a finding at the merits stage that the Court could not exercise the jurisdiction conferred upon it to adjudicate the dispute referred by Portugal in the absence of Indonesia as a necessary third party.

Source : http://www.asil.org/insigh28.cfm

Maritime Delimitation and Territorial Questions Between Qatar and Bahrain

On 16 March 2001 the ICJ delivered its Judgment in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), the longest in its history. The complex history of the dispute includes that Bahrain and Qatar had concluded exclusive protection agreements with Great Britain in 1892 and 1916 respectively, and that this status of protected States had ended in 1971. The Court further cites the disputes which arose between Bahrain and Qatar on the occasion, inter alia, of the granting of concessions to oil companies, as well as the efforts made to settle those disputes.

The Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain of 1995 poses two main issues to the International Court of Justice: those of admissibility and jurisdiction. Initially, the Court has to decide whether Qatar followed proper procedure by unilaterally admitting the dispute for adjudication. Qatar and Bahrain argue here over the proper method of seisin. Qatar assumes the position that unilateral seisin is proper; one party acting alone may bring the entire dispute. On the other hand, Bahrain argues the Parties must jointly seise the tribunal. Bahrain, arguing joint seisin, maintains the position that the Parties must seise the Court by Special Agreement. This method of seisin enables the Parties, by dual consent, to confer an adjudicatory role upon the Court.

Seisin is a procedural step, independent of the basis of jurisdiction invoked, and is governed by the Statute and Rules of the Court.Bahrain contended that without mutual seisin the Court lacked jurisdiction over the dispute. Mutual, or joint seisin, is the notion that a complementary agreement is a legal prerequisite for seisin of the Court. Qatar's unilateral application premised jurisdiction upon two agreements between the Parties concluded in December 1987 and December 1990. The Court found the letters and Minutes constituted binding international agreements, bringing the Parties within the compulsory jurisdiction of the Court. One form of compulsory jurisdiction occurs when States agree to refer certain legal disputes to the Court, and the Court may then exercise its jurisdiction on this basis.  This type of jurisdiction, treaty-based compulsory jurisdiction, obligates a State to accept the Court's jurisdiction over a legal dispute the State expressed in a treaty in force. Article 36(1) of the Statute of the International Court of Justice references this form of compulsory jurisdiction. The article allows States, in connection with the procedures of Article 40(1), and Article 38(1), to unilaterally bring a dispute under the Court's compulsory jurisdiction when treaties and conventions in force refer cases. A treaty clause referring a dispute between States to the Court is known as a "compromissory clause," and it triggers compulsory jurisdiction. Thus, a "compromissory clause" may bring a case before the Court pursuant to the terms of the treaty between the Parties, which refer to the disputed matters. After deciding that the December 1987, and December 1990 agreements were treaties in force, the Court admitted Qatar's Application based upon them, finding for compulsory jurisdiction. According to the Court's decision, Qatar effectively seised the Court by unilateral application.

In its Judgment on merits, the Court finds that Qatar has sovereignty over Zubarah;  that Bahrain has sovereignty over the Hawar Islands;  that vessels of Qatar enjoy in the territorial sea of Bahrain separating the Hawar Islands from the other Bahraini islands the right of innocent passage accorded by customary international law; that Qatar has sovereignty over Janan Island, including Hadd Janan; that Bahrain has sovereignty over the island of Qit'at Jaradah;  that the low-tide elevation of Fasht ad Dibal falls under the sovereignty of Qatar; that the single maritime boundary that divides the various maritime zones of Qatar and Bahrain shall be drawn as indicated in paragraph 250 of the Judgment.

Source: http://www.highbeam.com/doc/1G1-53462128.html

CONTINENTAL SHELF (LIBYA/MALTA) Judgment of 3 June 1985

In Libya-Malta case, decided by the International Court of Justice in 1986, was significant in that it established a methodology for the ICJ to approach maritime boundary cases. In the 1983 Special Agreement submitted by the parties, the court was asked to decide on the “principles and rules of international law” applicable to the delimitation of the area – i.e. not to decide on the position of the boundary itself.

CONTINENTAL SHELF (TUNISIA/LIBYAN ) Judgment of 24 February 1982

In its judgment in the Continental Shelf case between Tunisia and Libya, the Court declared the principles and rules of international law which are applicable to the delimitation of the areas of continental shelf appertaining respectively to Tunisia and Libya in the region concerned in the dispute.  It enumerated the relevant circumstances to be taken into account for the purpose of arriving at an equitable delimitation and specified the practical method to be used for the delimitation itself.

Turning to the Special Agreement between Tunisia and Libya by which the proceedings had been instituted (paras. 22-31), the Court recalled that under Article 1, paragraph 1, it had been requested to state "the principles and rules of international law" which might "be applied for the delimitation of the areas of the continental shelf" respectively appertaining to each of the two States, and had further been specifically called upon, in rendering its decision, to take account of the following three factors: (a)equitable principles; (b) the relevant circumstances which characterize the area; and (c) the new accepted trends in the Third United Nations Conference on the Law of the Sea.Article 1, second paragraph, of the Special Agreement required the Court to "clarify the practical method for the application of these principles and rules . . . so as to enable the experts of the two countries to delimit these areas without difficulties". The Court was therefore not called upon itself to draw the actual delimitation line. The Parties were in disagreement as to the scope of the task entrusted to the Court by that text, but a careful analysis of the pleadings and arguments on the point led the Court to conclude that there was only a difference of emphasis as to the respective roles of the Court and of the experts.The Court then dealt with the question of the principles and rules of international law applicable to the delimitation (paras. 36-107), which it examined in the light of the Parties' arguments. After first setting forth some general considerations (paras. 36-44), it examined the role of the new accepted trends at the United Nations Third Conference on the Law of the Sea (paras. 45-50). The Court went on to consider the implications of equitable principles (paras. 69-71) and to review the various circumstances such including natural prolongation characterizing the area which were likely to be relevant for the purposes of the delimitation (paras. 72-107).

Source: http://www.icj-cij.org/docket/index.php?sum=330&code=tl&p1=3&p2=3&case=63&k=c4&p3=5

Avena Mexico v. United States of America

Mexico v. United States of America, formally Avena and Other Mexican Nationals, was a case before the International Court of Justice (ICJ) decided on 31 March 2004, finding that the United States had breached its obligations under the Vienna Convention on Consular Relations in not allowing representation from Mexico to meet with Mexican citizens arrested and imprisoned for crimes in the United States. An order indicating provisional measures in the case of Mr. José Ernesto Medellín Rojas was entered on 16 July 2008, and on 19 January 2009 the ICJ found that the United States breached its obligations under the 16 July order, but also that the Statute of the International Court of Justice "does not allow it to consider possible violations of the Judgment which it is called upon to interpret."

Source: http://en.wikipedia.org/wiki/Mexico_v._United_States_of_America

The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. People's Republic of Albania)

The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. People's Republic of Albania) was a case brought against Albania by the UK, suing for compensation after, on 22 October 1946, two British destroyers hit sea-mines in Albanian waters at the straits of Corfu, damaging them and killing naval personnel during the Corfu Channel Incident. The International Court of Justice ordered Albania to pay the UK £843,947 in compensation. This was the first case brought before the ICJ. The Corfu Channel case established that states must meet a preponderance of the evidence standard to prevail before the ICJ.

Source: http://en.wikipedia.org/wiki/The_Corfu_Channel_Case_(United_Kingdom_of_Great_Britain_and_Northern_Ireland_v._People%27s_Republic_of_Albania)

Monetary Gold case (Italy v. France, United Kingdom and United States)

The Monetary Gold Removed from Rome in 1943 Case (Italy v. France, United Kingdom and United States) was part of a long-running dispute over the fate of Nazi gold that was originally seized from Rome. On 17 September 1943, 2,338 kg of gold were seized by the Germans from Rome. After the war, both Italy and Albania claimed that this gold was theirs, and that the Commission for the Restitution of Monetary Gold should return it to them. On 17 November 1950, the commission informed their forming governments (France, the UK and USA) that they could not resolve the issue.

On 25 April 1951, the three governments, having failed to reach an agreement, agreed to request that the International Court of Justice appoint an independent arbitrator, who, on 20 February 1953, decided that the gold belonged to Albania. However, the UK and Italy still laid claim to the gold: the UK as partial payment towards the (still unsettled) compensation that Albania was ordered to pay them against damage to UK navy vessels and loss of life during the Corfu Channel Incident, caused by an undisclosed Albanian mine-field in Corfu (see the Corfu Channel Case), whilst Italy claimed that most of the gold was originally Italian, seized by the Albanian government when it took control of the National Bank of Albania (which Italy had the majority of shares in), and additionally that the Italian Peace Treaty specifically gave them claim to the gold.

On 19 May 1953, Italy requested that the ICJ determine how much of the gold Italy had claim to, and whether the UK's or the Italian's claim should take precedence, stating that the three countries responsible for the redistribution of the gold should give it all to Italy in partial compensation for the Albanian seizure of the National Bank of Albania, and that this claim should over-ride the UK's claim. On 15 June 1953, the ICJ decided that, as the first issue to be addressed was the resolution of the legal dispute between Italy and Albania over the seizure of the National Bank of Albania, and as Albania had not deferred to the ICJ in this case, the ICJ had no jurisdiction in this matter.

Source: http://en.wikipedia.org/wiki/Monetary_Gold_Removed_from_Rome_in_1943_(Italy_v._France,_United_Kingdom_and_United_States)

The LaGrand case

The LaGrand case was a legal action heard before the International Court of Justice (ICJ) which concerned the Vienna Convention on Consular Relations. In the case the ICJ found that its own temporary court orders were legally binding and that the rights contained in the convention could not be denied by the application of domestic legal procedures.

On January 7, 1982, brothers Karl and Walter Bernhard LaGrand bungled an armed bank robbery in Marana, Arizona, United States, killing a man and severely injuring a woman in the process. They were subsequently charged and convicted of murder and sentenced to death. The LaGrands were German nationals, having been born in Germany. While they had both lived in the United States since they were four and five, respectively, neither had acquired U.S. citizenship. As foreigners the LaGrands should have been informed of their right to consular assistance, under the Vienna Convention, from their state of nationality, Germany. However the Arizona authorities failed to do this even after they became aware that the LaGrands were German nationals. The LaGrand brothers later contacted the German consulate of their own accord, having learned of their right to consular assistance. They appealed their sentences and convictions on the grounds that they were not informed of their right to consular assistance, and that with consular assistance they might have been able to mount a better defense. The federal courts rejected their argument on grounds of procedural default, which provides that issues cannot be raised in federal court appeals unless they have first been raised in state courts. 

Meanwhile Germany initiated legal action in the International Court of Justice against the United States regarding Walter LaGrand. Hours before Walter LaGrand was due to be executed, Germany applied for the Court to grant a provisional court order, requiring the United States to delay the execution of Walter LaGrand, which the court granted. US officials considered the provisional measures of the International Court of Justice as not legally binding and authorized executions. Karl LaGrand was subsequently executed by the state of Arizona on February 24, 1999, by lethal injection. Walter LaGrand was then executed March 3, 1999, by lethal gas.

Germany then modified its complaint in the case before the ICJ, alleging furthermore that the U.S. violated international law by failing to implement the provisional measures. In opposition to the German submissions, the United States argued that the Vienna Convention did not grant rights to individuals, only to states; that the convention was meant to be exercised subject to the laws of each state party, which in the case of the United States meant subject to the doctrine of procedural default; and that Germany was seeking to turn the ICJ into an international court of criminal appeal.

On June 27, 2001, the ICJ, rejecting all of the United States' arguments, ruled in favor of Germany. The ICJ held that the Vienna Convention on Consular Relations of 24 April 1963 (Vienna Convention) granted rights to individuals on the basis of its plain meaning, and that domestic laws could not limit the rights of the accused under the convention, but only specify the means by which those rights were to be exercised. The ICJ also found that its own provisional measures were legally binding. The nature of provisional measures has been a subject of great dispute in international law;the English text of the Statute of the International Court of Justice implies they are not binding, while the French text implies that they are. Faced with a contradiction between two equally authentic texts of the statute, the court considered which interpretation better served the objects and purposes of the statute, and hence found that they are binding. This was the first time in the court's history it had ruled as such.

Source: http://en.wikipedia.org/wiki/LaGrand_case

ICJ: Territorial and Maritime Dispute (Nicaragua v. Colombia) preliminary objections and intervention

Colombia submitted its preliminary objections on July 21, 2003.  At the conclusion of the proceedings, Colombia made the following submissions:

Pursuant to Article 60 of the Rules of Court, having regard to Colombia’s pleadings, written and oral, Colombia respectfully requests the Court to adjudge and declare that:

(1) under the Pact of Bogotá, and in particular in pursuance of Articles VI and XXXIV, the Court declares itself to be without jurisdiction to hear the controversy submitted to it by Nicaragua under Article XXXI, and declares that controversy ended;

(2) under Article 36, paragraph 2, of the Statute of the Court, the Court has no jurisdiction to entertain Nicaragua’s Application; and that

(3) Nicaragua’s Application is dismissed.

Nicaragua made the following submissions:

In accordance with Article 60 of the Rules of Court and having regard to the pleadings, written and oral, the Republic of Nicaragua respectfully requests to the Court, to adjudge and declare that:

1. The Preliminary Objections submitted by the Republic of Colombia, both in respect of the jurisdiction based upon the Pact of Bogotá, and in respect of the jurisdiction based upon Article 36, paragraph 2, of the Statute of the Court, are invalid.

2. In the alternative, the Court is requested to adjudge and declare, in accordance with the provisions of Article 79, paragraph 7, of the Rules of Court that the Objections submitted by the Republic of Colombia do not have an exclusively preliminary character.

3. In addition, the Republic of Nicaragua requests the Court to reject the request of the Republic of Colombia to declare the controversy submitted to it by Nicaragua under Article XXXI of the Pact of Bogotá ‘ended’, in accordance with Articles VI and XXXIV of the same instrument.

4. Any other matters not explicitly dealt with in the foregoing Written Statement and oral pleadings, are expressly reserved for the merits phase of this proceeding.

International Court of Justice ruled on 4 May 2011 that it cannot grant permission to Costa Rica and Honduras to intervene in the territorial sovereignty and maritime boundary case between Colombia and Nicaragua which was submitted to the Court by Nicaragua in December 2001.

Costa Rica applied to intervene in the case as a non-party for the “purpose of informing the Court of the nature of [its] legal rights and interests and of seeking to ensure that the Court’s decision regarding the maritime boundary between Nicaragua and Colombia does not affect those rights and interests”. Both Colombia and Nicaragua accepted the existence of a legal interest on the part of Costa Rica in at least some areas claimed by the parties in the main proceedings, but the Court judged that the indication of such an area was not sufficient in itself to justify an intervention. The Court further noted that Costa Rica had failed to demonstrate that its legal interest would be affected by the decision in the main proceedings when, if necessary, a boundary could be drawn which terminates before it reaches the area in which Costa Rica's legal interests would become involved.

Honduras applied to intervene in the case first as a party and, failing that, as a non-party. The Court reasoned that that the application boiled down to two propositions: (i) that the Court's 2007 judgment concerning the Honduras-Nicaragua maritime boundary had failed to settle the entire boundary; and (ii) that the decision in the Nicaragua v. Colombia case could affect rights enjoyed by Honduras under its 1986 maritime boundary agreement with Colombia. The Court rejected both propositions, noting that since a bilateral treaty neither confers and rights nor imposes any duties on third states, the Court would not place any reliance on the Colombia-Honduras maritime boundary agreement in determining the maritime boundary between Colombia and Nicaragua.

With interventions ruled out, the path now appears clear for the ICJ to set dates for hearings on the merits of the case, which relate to: (i) sovereignty over the Cayos de Albuquerque; the Cayos del Este Sudeste; Roncador Cay; North Cay, Southwest Cay and any other cays on Serrana bank; East Cay, Beacon Cay and any other cays on Serranilla Bank; and Low Cay and any other cays on Bajo Nuevo bank; and (ii) to the maritme boundary between the two states. In its judgment on Colombia's preliminary objects to the case brought by Nicaragua, the Court ruled that Colombia has sovereignty over the islands of San Andrés, Providencia and Santa Catalina.

Wrong move by Costa Rica

"56. The Court notes that Costa Rica initially claimed to have an interest in ensuring that its rights and interests under the 1977 Facio-Fernandez Treaty with Colombia, which it signed but did not ratify, are not affected by the Court's decision". ---
As it says, the proposed 1977 treaty between Costa Rica and Colombia hadn't been approved by the Costa Rican Legislative Assembly; therefore, by legal means, it doesn't exist. Because the Costa Rican delegates "initially claimed" the validity of the draft document, is something that is causing strong rejection from people like us, who had opposed for 34 years its approval, because the wrong application of the equidistant principle, and not the so called equity principle, considering the differences between the small Colombian islands and the Costa Rican main territory, as it was resolved by the Court in the Tunisia-Libya continental shelf case.

 

Sources: http://ilreports.blogspot.com/2007/06/icj-territorial-and-maritime-dispute.html
http://www.dur.ac.uk/ibru/news/boundary_news/?itemno=11988