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The 2004 Judicial Activity of the International Court of Justice

Published online by Cambridge University Press:  27 February 2017

John R. Crook
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Extract

During 2004 the International Court of Justice decided three important matters. In March the Court found that the United States had violated the Vienna Convention on Consular Relations with respect to a number of Mexican nationals sentenced to death in U.S. state court proceedings. In a much-noted advisory opinion, the Court concluded in July that Israel's construction of a security wall or fence in occupied Palestinian territory violated international law. And in December it found that it did not have jurisdiction over Serbia and Montenegro's claims against eight NATO countries regarding NATO's 1999 bombing campaign aimed at halting the conflict in Kosovo. In other developments, the Court heard and had under deliberation Germany's preliminary objections to Liechtenstein's suit regarding certain property of Crown Prince Adam. Finally, Judge Gilbert Guillaume, a member of the Court since 1987 and its former president, announced that he would resign in February 2005.

Type
Current Developments
Information
American Journal of International Law , Volume 99 , Issue 2 , April 2005 , pp. 450 - 459
Copyright
Copyright © American Society of International Law 2005

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References

1 This is the fifth annual report by the author regarding the Court’s work. Previous reports are at 95 AJIL 685 (2001) (for 2000) [hereinafter 2000 Report]; 96 AJIL 397 (2002) (for 2001) [hereinafter 2001 Report]; 97 AJIL 352 (2003) (for 2002) [hereinafter 2002 Report]; and 98 AJIL 309 (2004) (for 2003) [hereinafter 2003 Report]. The Court’s excellent Web site has again been invaluable in preparing this report, <http://www.icj–cij.org>.

2 Avena and Other Mexican Nationals (Mex. v. U.S.) (Int’l Ct. Justice Mar. 31, 2004), 43 ILM 581 (2004) [hereinafter Avena].

3 Shelton, Dinah L., Case Report: Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), 98 AJIL 559 (2004)CrossRefGoogle Scholar; Murphy, Sean D., Contemporary Practice of the United States, 98 AJIL 581 (2004)Google ScholarPubMed.

4 See 2003 Report, supra note 1, at 313.

5 Avena, supra note 2, para. 121.

6 See, e.g., Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.) (Int’l Ct. Justice Feb. 14, 2002), 41 ILM 536 (2002); Shelton, supra note 3, at 564–66; 2002 Report, supra note 1, at 353.

7 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004) [hereinafter Advisory Opinion].

8 ICJ Press Release 2004/28 (July 9, 2004).

9 Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory, 99 AJIL 1 (2005)Google Scholar.

10 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 ICJ Rep. 66 (July 8) (requested by the World Health Organization in 1993); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ REP. 226 (July 8) (requested by the General Assembly in 1994) [hereinafter jointly Nuclear Weapons]. The Court declined WHO’s request, finding that it did not relate to a question within the scope of WHO’s activities as required by Article 96, paragraph 2 of the United Nations Charter.

11 The Advisory Function of the International Court of Justice, Speech by Judge Shi Jiuyong, President of the International Court of Justice, to the Sixth Committee of the General Assembly (Nov. 5, 2004), available at ICJ Web site, supra note 1 [hereinafter Speech by President Shi].

12 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion,1989 ICJ Rep. 177 (Dec. 15); Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 1999 ICJ Rep. 62 (Apr. 29) [hereinafter jointly Special Rapporteur Cases].

13 Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, 1982 ICJ Rep. 325 (July 20); Application for Review of Judgement No. 333 of the United Nations Administrative Tribunal, Advisory Opinion, 1987 ICJ Rep. 18 (May 27).

14 Applicability of the Obligation to Arbitrate Under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, 1988 ICJ Rep. 12 (Apr. 26) [hereinafter Obligation to Arbitrate].

15 Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt, Advisory Opinion, 1980 ICJ Rep. 73 (Dec. 20).

16 Status of Eastern Carelia, Advisory Opinion, 1923 PCIJ (ser. B) No. 5 (July 23).

17 Id. at 27.

18 Id. at 28.

19 Id. at 29.

20 2 Rosenne, Shabtai, The Law and Practice of the International Court of Justice, 1920–1996, at 1004 (3d ed. 1997)Google Scholar.

21 Id. at 1005. The Soviet Union maintained that the Court should have declined to render the Certain Expenses advisory opinion because the underlying issue was in dispute between it and other states; and South Africa objected to rendering the requested opinion in the 1971 Namibia case. Rosalyn Higgins, Problems and Process: International Law and How We Use It 200 (1994).

22 Monetary Gold Removed from Rome in 1943 (Italy v. Fr., UK, U.S.), 1954 ICJ Rep. 19 (June 15).

23 See, e.g., International Status of South West Africa, Advisory Opinion, 1950 ICJ Rep. 128 (July 11)Google Scholar; Voting Procedure Concerning the Territory of South West Africa, Advisory Opinion, 1955 ICJ Rep. 67 (June 7)Google Scholar; Legal Consequences for States of the Continued Presence of South Africa in Namibia Notwithstanding Security Council Resolution 276 (1970)Google Scholar, Advisory Opinion, 1971 ICJ Rep. 16 (June 21) [hereinafter Namibia Case]; Obligation to Arbitrate, supra note 14; Special Rapporteur Cases, supra note 12.

24 Western Sahara, Advisory Opinion, 1975 ICJ Rep. 12 (Oct. 16).

25 Higgins, supra note 21, at 201.

26 Western Sahara, supra note 24, at 27.

27 Advisory Opinion, supra note 7, para. 160.

28 Speech by President Shi, supra note 11.

29 ICJ Press Release 2003/44 (Dec. 19, 2003).

30 ICJ Press Release 2004/1 (Jan. 15, 2004).

31 ICJ Press Release 2004/2 (Jan. 22, 2004).

32 3 Rosenne, supra note 20, at 1729–30.

33 For these cases, see supra note 10.

34 See 2003 Report, supra note 1, at 310–11.

35 Status of Eastern Carelia, supra note 16, at 28.

36 Advisory Opinion, supra note 7, para. 57.

37 Id., para. 140.

38 Id., Declaration of Judge Buergenthal, 43 ILM at 1078, para. 5.

39 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 5 (Int’l Ct. Justice Jan. 30, 2004); ICJ Press Release 2004/4 (Feb. 3, 2004).

40 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 39, dispositif.

41 Namibia Case, supra note 23.

42 The eight remaining separate cases were Legality of Use of Force (Serb. & Mont. v. Belg.), (Serb. & Mont. v. Can.), (Serb. & Mont. v. Fr.), (Serb. & Mont. v. Ger.), (Serb. & Mont. v. Italy), (Serb. & Mont. v. Neth.), (Serb. & Mont. v. Port.), and (Serb. & Mont. v. UK) [hereinafter NATO Bombing cases]. Yugoslavia had also sued the United States and Spain, but the Court dismissed those claims in 1999. Legality of Use of Force (Yugo. v. U.S.), Provisional Measures, 1999 ICJ Rep. 916 (June 2); Legality of Use of Force (Yugo. v. Spain), Provisional Measures, 1999 ICJ Rep. 761 (June 2).

43 In 2003 the former Federal Republic of Yugoslavia changed its name to Serbia and Montenegro. For clarity, this Note refers to Serbia and Montenegro throughout, including for events prior to the name change.

44 See, e.g., Legality of Use of Force (Yugo. v. UK), Provisional Measures, 1999 ICJ Rep. 826, 839, paras. 37, 38 (June 2) (denying provisional measures).

45 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. FRY) (filed Mar. 20,1993), ICJ Press Release 93/4 (Mar. 22, 1993); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. FRY) (filed July 2, 1999), ICJ Press Release 99/38 (July 2, 1999).

46 Report of the International Court of Justice: 1 August 2003–31 July 2004, para. 138 [hereinafter ICJ Annual Report].

47 Application for Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of die Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugo. v. Bosn. & Herz.) (Int’l Ct. Justice Feb. 3, 2003); see 2003 Report, supra note 1, at 311–12.

48 Written Observations of the Federal Republic of Yugoslavia (Dec. 18, 2002), Legality of Use of Force (identical statements to all respondents). These observations also contended that Serbia and Montenegro had not continued the personality and treaty membership of the former Yugoslavia, and accordingly was not bound by the Genocide Convention.

49 In a separate opinion, Judge Higgins urged that the Court should have terminated the case in the exercise of its judicial powers, not because the applicant had discontinued it:

[T]he real question is not whether the Applicant has or has not “discontinued” the case . . . . The question is whether the circumstances are such that it is reasonable, necessary and appropriate for the Court to strike the case off the List as an exercise of inherent power to protect the integrity of the judicial process.

Legality of Use of Force (Yugo. v. Belg., Can., Fr., Ger., Italy, Neth., Port., UK) (Int’l Ct. Justice Dec. 15, 2004), Separate Opinion of Judge Higgins, para. 12.

50 The Security Council established the required conditions in Resolution 9/1946 (Oct. 15, 1946). A state not party to the Statute must deposit a declaration accepting the Court’s jurisdiction, undertaking to comply with its judgments and accepting other obligations of UN members under Article 94 of the Statute.

51 Vice–President Ranjeva and Judges A1–Khasawneh, Buergenthal, Elaraby, Guillaume, Higgins, and Kooijmans.

52 2001 Report, supra note 1, at 406–07.

53 ICJ Press Release 2004/37 (Dec. 8, 2004)Google Scholar.

54 ICJ Press Release 2004/31 (Sept. 16, 2004)Google Scholar.

55 Maritime Delimitation in the Black Sea (Rom. v. Ukr.) (Int’l Ct. Justice Nov. 19, 2004); see ICJ Press Release 2004/34 (Nov. 19, 2004)Google Scholar.

56 See 2000 Report at 691, 2001 Report at 410–11, 2002 Report at 361, all supra note 1.

57 ICJ Press Release 2004/30 (July 30, 2004)Google Scholar.

58 Practice Directions I–XII (July 30, 2004), available at ICJ Web site, supra note 1. For amended Practice Direction 5, and new Practice Directions X–XII, see also ICJ Press Release 2004/30, supra note 57, annex.

59 Practice Direction XII(2), supra note 58.

60 See, e.g., Meyer, Howard N., The World Court In Action 227–30 (2002)Google Scholar.

61 See 2002 Report, supra note 1, at 361.

62 ICJ Press Release 2004/29 (July 13, 2004)Google Scholar. Frontier Dispute (Benin/Niger) involves another practice the Court seeks to discourage—use of simultaneous pleadings in cases brought by special agreement. While these maintain the appearance that the case was brought by agreement, so neither party appears as claimant or respondent, the procedure is not efficient at clarifying issues.

63 Certain Criminal Proceedings in France (Rep. Congo v. Fr.) (Int’l Ct. Justice June 17, 2004); see ICJ Press Release 2004/22 (June 21, 2004).

64 ICJ Press Release 2004/38 (Dec. 13, 2004)Google Scholar. See further text at note 78 infra.

65 See, for example, ICJ Press Releases 2004/24, 2004/25, and 2004/26, all issued on June 25, 2004.

66 ICJ Press Release 2004/17 (Apr. 8, 2004)Google Scholar.

67 ICJ Press Release 2004/20 (May 27, 2004)Google Scholar. On the case, see 2001 Report, supra note 1, at 406–08.

68 ICJ Press Release 2004/33 (Nov. 10, 2004)Google Scholar.

69 ICJ Annual Report, supra note 46, para. 259.

70 See 2003 Report, supra note 1, at 316.

71 Avena, the General Assembly’s advisory opinion request concerning Israel’s wall, and Serbia and Montenegro’s eight NATO Bombing cases.

72 ICJ Press Release 2004/36 (Dec. 6, 2004)Google Scholar.

73 See 2003 Report, supra note 1, at 315, 316.

74 ICJ Press Release 2004/37 (Dec. 8, 2004)Google Scholar.

75 See text at notes 51–53 supra; 2003 Report, supra note 1, at 316.

76 ICJ Annual Report, supra note 46, para. 185.

77 ICJ Press Release 2004/29, supra note 62. (This case is being heard by an ad hoc chamber of the Court presided over by Judge Guillaume.)

78 Certain Criminal Proceedings in France (Dem. Rep. Congo v. Fr.) (Int’l Ct. Justice Dec. 29, 2004).

79 The case was filed in 1999. See note 45 supra. Serbia and Montenegro filed preliminary objections in September 2002; Croatia responded in April 2003. ICJ Annual Report, supra note 46, para. 174.

80 The Court ordered the parties to address jurisdiction and admissibility separately from the merits; pleadings on these matters closed in May 2003.

81 The Democratic Republic of the Congo filed preliminary objections in October 2002, and Guinea replied in July 2003. ICJ Annual Report, supra note 46, paras. 151–52.

82 Colombia filed preliminary objections in July 2003, and Nicaragua responded in January 2004.

83 ICJ Annual Report, supra note 46, para. 236.

84 Id., para. 147.

85 Id., paras. 100–01.