CR 2005/17
Cour internationale International Court
de Justice of Justice
LAAYE THAEGUE
ANNÉE 2005
Audience publique
tenue le lundi 4 juillet 2005, à 10 heures, au Palais de la Paix,
sous la présidence de M. Shi, président,
en l’affaire des Activités armées sur le territoire du Congo (nouvelle requête : 2002)
(République démocratique du Congo c. Rwanda)
________________
COMPTE RENDU
________________
YEAR 2005
Public sitting
held on Monday 4 July 2005, at 10 a.m., at the Peace Palace,
President Shi presiding,
in the case concerning Armed Activities on the Territory of the Congo
(New Application: 2002)
(Democratic Republic of the Congo v. Rwanda)
____________________
VERBATIM RECORD
____________________ - 2 -
Présents : M. Shi,président
Ricepra,ident
KorMoMa.
Vereshchetin
Higgimse
ParraAr.anguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Simma
Tomka
Ajbresam,
DugMard .
Mavungu Mvumbi-di-Ngoma, juges ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 3 -
Present: Presidenit
Vice-PreRsdejetva
KoromJaudges
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Simma
Tomka
Abraham
Judges ad hoc Dugard
Mvumbi-diM-Nagvonau
Couevrisrar
⎯⎯⎯⎯⎯⎯ - 4 -
Le Gouvernement de la République démocratique du Congo est représenté par :
e
S. Exc. M Honorius Kisimba Ngoy Ndalewe, ministre de la justice et garde des sceaux de la
République démocratique du Congo,
comme chef de la délégation;
S. Exc. M. Jacques Masangu-a-Mwanza, ambassadeur extraordinaire et plénipotentiaire de la
République démocratique du Congo auprès du Royaume des Pays-Bas,
comme agent;
M. Ntumba Luaba Lumu, secrétaire général du gouvernement,
comme coagent et conseil;
M. Lwamba Katansi,
M. Mukadi Bonyi,
M. Akele Adau,
comme conseils et avocats;
e
M Crispin Mutumbe Mbuya, conseiller juridique du ministre de la justice et garde des sceaux,
M. Victor Musompo Kasongo, secrétaire particulier du ministre de la justice et garde des sceaux,
M. Nsingi-zi-Mayemba, premier conseiller d’amba ssade de la République démocratique du Congo
au Royaume des Pays-Bas,
Mme Marceline Masele, deuxième conseiller d’ ambassade de la République démocratique du
Congo au Royaume des Pays-Bas,
comme conseillers;
M. Richard Lukunda,
comme assistant des conseils et avocats.
Le Gouvernement de la République du Rwanda est représenté par :
M. Martin Ngoga, procureur général adjoint de la République du Rwanda,
comme agent;
S. Exc. M. Joseph Bonesha, ambassadeur de la République du Rwanda auprès du Royaume de
Belgique et ambassadeur désigné auprès du Royaume des Pays-Bas,
comme agent adjoint; - 5 -
The Government of the Democratic Republic of the Congo is represented by:
H. E. Maître Honorius Kisimba Ngoy Ndalewe, Minister of Justice and Keeper of the Seals of the
Democratic Republic of the Congo,
as Head of Delegation;
H. E. Mr.Jacques Masangu-a-Mwanza, Ambassador Extraordinary and Plenipotentiary of the
Democratic Republic of the Congo to the Kingdom of the Netherlands,
as Agent;
Professor Ntumba Luaba Lumu, Secretary-General to the Government,
as Co-Agent and Counsel;
Professor Lwamba Katansi,
Professor Mukadi Bonyi,
Professor Akele Adau,
as Counsel and Advocates;
Maître Crispin Mutumbe Mbuya, Legal Adviser to the Minister of Justice and Keeper of the Seals,
Mr. Victor Musompo Kasongo, Private Secretary to the Minister of Justice and Keeper of the Seals,
Mr. Nsingi-zi-Mayemba, First Adviser to the Embassy of the Democratic Republic of the Congo in
the Kingdom of the Netherlands,
Ms Marceline Masele, Second Adviser to the Embassy of the Democratic Republic of the Congo in
the Kingdom of the Netherlands,
as Advisers;
Mr. Richard Lukunda,
as Assistant to Counsel and Advocates.
The Government of the Republic of Rwanda is represented by:
Mr. Martin Ngoga, Deputy Prosecutor General of the Republic of Rwanda,
as Agent;
H.E. Mr. Joseph Bonesha, Ambassador of the Republic of Rwanda to the Kingdom of Belgium and
Ambassador Designate to the Kingdom of the Netherlands,
as Deputy Agent; - 6 -
M. Greenwood, C.M.G., Q.C., professeur de droit international à la London School of Economics
and Political Science, membre du barreau d’Angleterre,
Mme Jessica Wells, membre du barreau d’Angleterre,
comme conseils;
Mme Susan Greenwood,
comme secrétaire. - 7 -
Mr. Christopher Greenwood, Q.C., Professor of International Law at the London School of
Economics and Political Science, member of the English Bar,
Ms Jessica Wells, member of the English Bar,
Coausnsel;
Ms Susan Greenwood,
as Secretary. - 8 -
The PRESIDENT: Please be seated. The sitting is open.
The Court meets today to hear the oral ar guments of the Parties in the case concerning
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of
the Congo v. Rwanda).
Since the Court does not include upon the Bench a judge of the nationality of either of the
Parties, both Parties have availed themselves of the right, under Article31, paragraph2, of the
Statute, to choose a judge ad hoc. Judge Christopher John Robert Dugard, chosen by the Republic
of Rwanda, and Judge Jean-Pierre Mavungu Mvumbi-di-Ngoma, chosen by the Democratic
Republic of the Congo, were both installed as judges ad hoc in the case on 13 June 2002.
*
I shall now recall the principal steps of the procedure so far followed in this case. On
28 May 2002, the Democratic Republic of the Congo instituted proceedings against the Republic of
Rwanda in respect of a dispute concerning “massi ve, serious and flagrant violations of human
rights and of international humanitarian law” a llegedly resulting from acts of armed aggression
perpetrated by Rwanda on the territory of the Demo cratic Republic of the Congo in flagrant breach
of the sovereignty and territorial integrity of the latter, as guaranteed by the United Nations and
OAU Charters.
In its Application, the Congo, referring to Artic le36, paragraph1, of the Statute, relied, in
order to found the jurisdiction of the Court, on Article22 of the International Convention on the
Elimination of All Forms of Racial Discrimination; Article 29, paragraph 1, of the Convention on
the Elimination of All Forms of Discrimination ag ainst Women; Article IX of the Convention on
the Prevention and Punishment of the Crime of Genocide; Article75 of the Constitution of the
World Health Organization; ArticleXIV, paragr aph2, of the Constitution of the United Nations
Educational, Scientific and Cultural Organization and Article 9 of the Convention on Privileges and
Immunities of Specialized Agencies; Article30, paragraph1, of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment; and Article 14, paragraph 1, of - 9 -
the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation.
The Congo further contends that the Vienna Convention on the Law of Treaties established
the jurisdiction of the Court to settle disputes arising from the violation of peremptory norms, jus
cogen, in the area of human rights, as those norms are reflected in a number of international
instruments.
On 28May2002, immediately after filing its Application, the Congo also submitted a
request for the indication of provisional measures pur suant to Article 41 of the Statute of the Court
and Articles 73 and 74 of its Rules.
At the hearings on the request for the indication of provisional measures submitted by the
Congo, Rwanda asked the Court to remove the case from the List. By Order of 10July 2002 the
Court rejected the Congo’s request for the in dication of provisional measures and Rwanda’s
request that the case be removed from the List.
At a meeting held by the President of the Court with the Agents of the Parties on
4September2002, Rwanda proposed that the procedure provided for in Article79, paragraphs2
and 3, of the Rules of Court be followed, and that the questions of jurisdiction and admissibility in
the case therefore be determined separately before any proceedings on the merits; the Congo stated
that it would leave the decision in this regard to the Court. At the conclusion of the meeting the
Parties agreed that, in the event that this pro cedure was followed, Rwanda would first present a
Memorial dealing exclusively with the questions of jurisdiction and admissibility, to which the
Congo would reply in a Counter-Memorial confined to the same questions.
By Order of 18 September 2002, the Court deci ded that the written pleadings would first be
addressed to the questions of the jurisdiction of th e Court to entertain the Application and of its
admissibility and fixed 20January2003 and 20Ma y2003 as the time-limits for the filing of a
Memorial by Rwanda and a Counter-Memorial by the Congo, respectively. The Memorial and
Counter-Memorial were filed within the time-limits so prescribed.
In accordance with directions given to him by the Court under Article43 of the Rules of
Court, the Registrar sent the notification provided fo r in Article63, paragraph1, of the Statute to
all the States parties to the Convention on Discr imination against Women, the WHO Constitution, - 10 -
the Unesco Constitution, the Montreal Conventio n and the Vienna Convention on the Law of
Treaties.
In accordance with instructions given to him by the Court under Article 69, paragraph 3, of
the Rules of Court, the Registrar also sent the no tifications provided for in Article 34, paragraph 3,
of the Statute and communicated copies of the wr itten pleadings to the Secretary-General of the
United Nations, in respect of the Convention on Discrimination against Women; to the
Director-General of the WHO, in respect of th e WHO Constitution; to the Director-General of
Unesco, in respect of the Unesco C onstitution; and to the Secretary General of the International
Civil Aviation Organization, in respect of th e Montreal Convention. He also asked the
organizations concerned whether they intended to submit observations in writing within the
meaning of Article69, paragraph3, of the Rules of Court. None of them expressed the wish to
submit such observations.
*
I would add that the Court, having ascertained the views of the Parties, has decided, pursuant
to Article 53, paragraph 2, of its Rules, that copies of the pleadings and documents annexed will be
made accessible to the public on the opening of the oral proceedings.
*
I note the presence at the hearing of the Agents, counsel and advocates of both Parties.
In accordance with the arrangements on the organization of procedure which have been
decided by the Court, the hearings will comprise a first and a second round of oral argument.
Rwanda will present its first round of oral argume nt this morning, until 1p.m. The Congo will
present its first round of oral argument tomorrow morning at 10 o’clock. Rwanda will then present
its oral reply on Wednesday 6 July at 3 p.m. For its part, the Congo will present its oral reply on
Friday 8 July at 10 a.m.
May I take this opportunity to remind you that the time allotted to the Parties for their oral
argument is a maximum, which they are under no obligation to use in full. On the contrary, the - 11 -
Court would appreciate it if the Parties would kindly be as brief as necessary in presenting their
respective cases, and that they duly bear in mind the requirements of paragraph 1 of Article 60 of
the Rules of Court, which provides as follows:
“The oral statements made on behalf of each party shall be as succinct as
possible within the limits of what is requisite for the adequate presentation of that
party’s contentions at the hearing. Accordi ngly, they shall be directed to the issues
that still divide the parties, and shall ngo over the whole ground covered by the
pleadings, or merely repeat the facts and arguments these contain.”
This applies in particular to the second round of argument.
I now give the floor to Mr.Martin Ngoga, Agent of the Republic of Rwanda. Mr.Ngoga,
you have the floor, please.
NMGr. GA:
1.1. Mr. President, Members of the Court, it is an honour for me to appear before you today
as Agent of the Republic of Rwanda in the proceed ings instituted by the Democratic Republic of
the Congo.
1.2. May I begin by introducing the represen tatives of Rwanda in these proceedings. I am
joined by the Deputy Agent, His Excellency Am bassadorJosephBonesha, the Ambassador of
Rwanda to the Kingdom of Belgium and Am bassador designate to the Kingdom of the
Netherlands. Counsel for Rwanda today ar e Professor Christopher Greenwood, Q.C., and
Professor of International Law at the London School of Economics, and Ms Jessica Wells, both of
whom are members of the English Bar. The administrative member of the team is
Ms Susan Greenwood.
1.3. Mr.President, this week’s hearings be fore the Court are confined to the issues of
jurisdiction and admissibility. They are not about the history of the conflicts which have ravaged
the Great Lakes region since the genocide perpet rated against the people of Rwanda in 1994.
Rwanda will not, therefore, take up the Court’s time with a response to the factual allegations made
by the Congo in its Application and in the various Livres Blancs which it has submitted to the
Court and which it has sought to insinuate in its Counter-Memorial on preliminary objections. In
taking this approach, it must not be thought that Rwanda cons iders these matters unimportant ⎯ a
country which has suffered as much as Rwanda has done is all too aware of the enormity of the - 12 -
allegations made in the present case. Nor do we accept for one minute the truth of the allegations
made against Rwanda in this case. When the hist ory of the region comes to be written, it will bear
no resemblance to what is alleged by the Congo.
1.4. No, Mr.President, we pass these matters by for one reason ⎯ and one reason only:
because no matter how tempting it is to set the reco rd straight, the truth or falsehood of these
allegations made by the Congo is irrelevant to th e only questions which the Court has to decide in
the present phase of the proceedings. Rwanda unde rstands the injunction by the Court in its
Practice Direction No.6 that “where objections of lack of jurisdiction or of inadmissibility are
being considered, oral proceedings are to be limite d to statements on the objections”. We are well
aware of the pressures on the Court’s time and have not come here to waste that time by arguing
about matters which do not fall to be decided at this hearing or by engaging in political
grandstanding. We mean to get straight to the heart of the issues before the Court, namely ⎯
First , does the Court possess jurisdiction over the case which Congo seeks to bring before it?
and
Secondly, is Congo’s Application admissible?
1.5. On the first issue, Rwanda maintains that the position is simple. It is an elementary
principle of international law ⎯ stated by the Court on numerous occasions ⎯ that the jurisdiction
of the Court can be established only on the basis of the consent of the parties to the case. In the
present case, Mr. President, we respectfully submit that none of the bases for jurisdiction invoked
by the Congo in its Application, in its statements at the hearing in June 2002, or in its
Counter-Memorial come anywhere near establishi ng the basis of consent necessary to found the
jurisdiction of the Court. It is for the Congo ⎯ as the claimant in these proceedings ⎯ to show
that jurisdiction exists. It has not done so and we ask the Court to declare accordingly that it lacks
jurisdiction.
1.6. On the second issue, Rwanda maintains that the present Application is inadmissible on
the ground that it is an abuse of the process of th e Court for the Congo to seek to lay before the
Court an Application which is essentially the sa me as the one which it filed in 1999 and then
withdrew in 2001. - 13 -
1.7. Rwanda’s arguments on these issues will be developed by our counsel as follows.
Professor Greenwood will first outline the nature of the jurisdictional issues before the Court and
respond to the Congo’s arguments concerning the effect of the Court’s Order of 10 July 2002 and
the new arguments on jurisdiction raised in the Congo’s Counter-Memorial. He will then show
why neither the Montreal Convention for the Suppre ssion of Unlawful Acts against the Safety of
Civil Aviation, 1971, nor the Convention on the Elimination of all Forms of Discrimination against
Women, 1979, can provide a basis for jurisdiction in the present case.
1.8. MsWells will then demonstrate why ju risdiction cannot be founded upon either the
Constitution of Unesco or the Statute of the World H ealth Organization. She will also deal briefly
with two other treaties relied upon by Congo in its Application ⎯ the Genocide Convention and
the Convention on the Elimination of Racial Discrimination.
1.9. Finally, Professor Greenwood will address you on the subject of admissibility and
summarize the arguments of Rwanda.
1.10. Mr. President, I now ask you to call upon Professor Greenwood to present the first part
of the argument of the Republic of Rwanda. Thank you.
The PRESIDENT: Thank you, Mr. Ngoga. I now give the floor to Professor Greenwood.
GMRr.ENWOOD:
1. Introduction
2.1. Mr. President, Members of the Court, may it please the Court. It is an honour to appear
before you again on behalf of the Republic of Rwanda.
1
2.2. Mr. President, consistent with Article 60 of the Rules of the Court which you drew to
our attention in your opening address, Rwanda w ill deal only with those matters which it believes
are still in issue between itself and the Congo.
2.3. It is a matter of regret that the written proceedings to date have not narrowed the issues
between the Parties as much as one might have expected, let alone hoped. True, the Congo, in its
Counter-Memorial, has concentrated on four treaties on which it now seeks to found the
1Art. 60 (1). - 14 -
jurisdiction of the Court. But it has also e xpressly confirmed all of what it describes as its
“arguments jurisprudentiels et doctrinaux” (“jurisprudential and doctrinal arguments”) invoked at
the oral proceedings in June2002 2, even though in the case of several of those arguments it has
elected to say nothing about them in its written pleadings.
2.4. Rwanda cannot, therefore, ignore those other arguments altogether. We will concentrate
upon the grounds on which the Congo develops arguments in its Counter-Memorial and we will be
as brief as possible on those other grounds of jurisdiction invoked in the Application.
Nevertheless, Mr.President, for the avoidance of doubt, let me make clear that Rwanda stands
by ⎯ and confirms ⎯ all of the arguments made in its Memorial of January2003 and in the
statements made on its behalf at the hearing of the Congo’s request for provisional measures of
protection in June 2002.
2. The nature of the jurisdictional issue
2.5. Mr.President, it is necessary to say so mething at the outset about the nature of the
jurisdictional issue before the Court, for this is a matter on which the Congo has taken an approach
very different from Rwanda ⎯ and, indeed, very different from that which is consistently taken by
the Court.
2.6. We can, at least, start with a point of agreement. It is common ground that under
Article36, paragraph6, of the Statute it is fo r the Court to determine whether or not it has
jurisdiction. So, Rwanda entirely agrees with the Congo that it is for the Court today to exercise its
3
compétence de la compétence . But the compétence de la compétence is not, as the Congo appears
to believe, an unlimited power for the Court to assert jurisdiction whenever it deems it appropriate
to do so. It is the authority to decide, upon well established principles, whether one or more of the
recognized grounds on which jurisdiction can be based is applicable to the case before it.
2.7. The most clearly established principle on wh ich the jurisdiction of this Court is based is
that that jurisdiction depends upon the consent of the parties to the case. The Court had occasion to
remind the Congo and Rwanda of th is elementary proposition in its Order rejecting the request for
2
Counter-Memorial of Congo, p. 9, para. 26.
3
Ibid., p. 4, para. 19. - 15 -
provisional measures, when it said: “the Court has repeatedly stated that one of the fundamental
principles of its Statute is that it cannot decide a dispute between States without the consent of
4
those States to its jurisdiction . . .” .
2.8. This insistence upon the consent of th e parties as an absolute precondition to the
establishment of jurisdiction, is not in any wa y in opposition to the rule of law as the Congo
suggests in its Counter-Memorial, it is rather th e expression of a principle of international law
which Professor Rosenne has described in the following terms:
“There exists an uncontroverted principle of general international law according
to which no State is obliged to submit any dispute with another State or to give an
account of itself to any international tribunal. The agreement of the Parties to the
5
dispute is the prerequisite to adjudication on the merits.”
2.9. That consent can, of course, be given in specific form, for the particular dispute, or more
generally, but if the respondent State has not given a valid consent, then there is no jurisdiction.
Mr.President, the Congo quite simply ignores th is fundamental principle of the Court’s
jurisprudence. Instead it asserts in its Counter-Memorial that:
“[L]a cour possède le pouvoir, à l’occasion d’une affaire de la nature de la
présente qui se situe au seuil du troisième millénaire inaugurant ou, à tout le moins,
augurant du règne des Droits de l’Homme, de donner des dimensions nouvelles aux
principes qui gouvern ent sa compétence ratione personae, ratione materiae, ratione
6
temporis.”
2.10. And the Congo refers to the duties of States under the United Nations Charter and to
what it describes as “le caractère extensif, mieux la tendance à l’extension de la compétence de la
Cour”, which it claims was manifested 30 years ago in the Fisheries Jurisdiction cases.
2.11. It is a grand piece of rhetoric, Mr. President, but behind the imposing facade there is an
empty house. Quite apart from the fact that it ig nores the consistent jurisprudence of the Court
regarding the consensual basis of jurisdiction, th e Congo’s argument is based on a number of other
false premises. Three short points will suffice to demonstrate its emptiness.
4
Order of 10July2002, para.57. See also Legality of Use of Force (Yugoslavia v. Belgium), Provisional
Measures, I.C.J. Reports 1999 (I), p. 132, para. 20.
5Rosenne, The Law and Practice of the International Court: 1920-1996 (Kluwer, 1997), Vol. II, p. 563.
6
Counter-Memorial, pp. 4-5, para. 15. - 16 -
2.12. First, let us take the Congo’s reference to “une affaire de la nature de la présente” ⎯ a
matter on which we heard much in the 2002h earings and will doubtless hear much more
tomorrow. In 2002 the Congo insisted that the gravity of the factual allegations and the jus cogens
status of the norms which it claimed were being violated demanded that the Court take jurisdiction.
But the nature of a case ⎯ whether measured by the gravity of the factual issues or the status of the
rules of law said to have been violated ⎯ cannot create jurisdiction where none would otherwise
exist. As the Court explained, both in its 2002 Or der in the present case and a few years earlier in
its 1999 Orders in the cases concerning Legality of Use of Force:
“there is a fundamental distinction betw een the question of the acceptance by a State
of the Court’s jurisdiction and the compatib ility of particular acts with international
law; the former requires consent; the la tter question can only be reached when the
Court deals with the merits after having est ablished its jurisdiction and having heard
full legal arguments by both parties” 7.
2.13. Nor does the legal status of the norms make any difference. The Legality of Use of
Force cases also concerned allegations regarding norms of jus cogens and norms which created
obligations applicable erga omnes. As the Court said in its earlier Order in the present case “it
does not follow from the mere fact that rights and obligations erga omnes are at issue in a dispute
8
that the Court has jurisdiction to adjudicate upon that dispute” .
2.14. Secondly, Mr.President, the Congo’s refe rence to the obligations of States under the
Charter ⎯ a point which it does not develop beyond a general assertion in its Counter-Memorial ⎯
is entirely beside the point. The Court has already made clear ⎯ most recently in its decision in
the case concerning the Aerial Incident of 10August1999 ⎯ that “the United Nations Charter
9
contains no specific provision of itself conferring compulsory jurisdiction on the Court” . As for
the British argument in the Corfu Channel case ⎯ to which the Congo refers in its
Counter-Memorial ⎯ that argument concerned whether a resolution of the Security Council
recommending that a dispute be submitted to the C ourt was sufficient to create jurisdiction. The
Court held that it did not need to rule upon th at argument as it possessed jurisdiction on other
7
Order of 10July2002, para.92; case concerning Legality of Use of Force (Yugoslaviav. Belgium), I.C.J.
Reports 1999 (I), p. 124, para. 47.
8Order of 10 July 2002, para. 71.
9
I.C.J. Reports 2000, para. 48. - 17 -
grounds, although the British argument was rejected in a joint separate opinion by seven of the
16 judges. But more to the point, Mr. President, th ere is in this case no resolution of the Security
Council recommending that a dispute be referred to the International Court of Justice. The Corfu
Channel case simply does not assist the Congo in any way.
2.15. Lastly, Mr.President, Members of the C ourt may be puzzled by the suggestion that a
tendency towards extensive jurisdiction ⎯ whatever that might mean ⎯ can be derived from the
Fisheries Jurisdiction cases of 1974. The basis for jurisd iction in those cases was an express
provision in bilateral treaties between Iceland a nd Germany and Iceland and the United Kingdom.
The cases are a textbook example of consensual jurisdiction and it remains a mystery to us how the
Congo imagines they assist it in developing its theory of a tendency to extension.
3. The grounds of jurisdiction advanced by Congo
2.16. So, Mr.President, however inconvenient it may be for the Congo, there is no new
theory of jurisdiction which will free it from the ne ed to establish that ther e is indeed a basis in
consent for jurisdiction in this case. Consent can, of course, be manifested in many different
ways ⎯ in a special agreement, by declaration under the optional clause, by forum prorogatum or
by the acceptance of a treaty containing a clause conferring jurisdiction upon the Court.
2.17. There is no special agreement here. Rw anda, as is its right, has made no declaration
under the optional clause. There is no basis for a serious argument about forum prorogatum. I say
a “serious argument”, because in paragraphs 22 and 23 of its Counter-Memorial, the Congo makes
a half-hearted reference to forum prorogatum as that doctrine was articulated in the Corfu Channel
case. But as the Court there made clear, forum prorogatum requires “a voluntary and indisputable
10
acceptance of the Court’s jurisdiction” . In other words, the respondent State must plead to the
merits of the case in such a way as to indicate an abandonment of any right to challenge the
jurisdiction of the Court. There can be no questi on of Rwanda having done anything of the kind.
On the contrary, both in 2002 and subsequently, Rw anda has consistently asserted that the Court
has no jurisdiction and has appeared for the purpose of challenging that jurisdiction.
1I.C.J. Reports 1948, p. 27. See also Anglo-Iranian Oil Co., I.C.J. Reports 1952, p. 114. - 18 -
2.18. It follows that the only serious issues regarding jurisdiction concern the treaties
invoked by the Congo, which contain disputes clauses pr oviding for the jurisdiction of this Court.
Let me briefly remind the Court what those treaties are ⎯
(1)the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or
11
Punishment, 1984 (“the Torture Convention”) ;
(2) the Convention on the Elimination of all Form s of Racial Discrimination, 1965 (“the Racial
Discrimination Convention”) 12 ;
(3)the Convention on the Prevention and Punish ment of the Crime of Genocide, 1948 (“the
Genocide Convention”) 13;
(4)the Convention on the Elimination of all Forms of Discrimination against Women, 1979
14
(“CEDAW”) ;
15
(5) the Statute of the World Health Organization ;
(6) the Constitution of Unesco 16;
(7) the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil
17
Aviation, 1971 (“the Montreal Convention”) ; and last
(8) the Vienna Convention on the Law of Treaties, 1969 (“the Vienna Convention”) 18.
Mr. President, in your opening statement you also referred to the Convention on the
Privileges and Immunities of the United Nations. But while that has been mentioned by the Congo,
at the hearings in June 2002, the learned Agent of the Congo expressly disavowed any reliance on
that Treaty as a ground for the jurisdiction of the Court; and on that basis Rwanda is not proposing
11
Memorial, Ann. 1
12Ibid., Ann, 2.
13
Ibid., Ann. 3.
14Ibid., Ann. 4.
15
Ibid., Ann. 5.
16Ibid., Ann. 6.
17
Ibid., Ann. 7.
18Ibid., Ann. 8. - 19 -
to make any submissions regarding it in this first round. Obviously, if the position changes we will
address the matter in our second round speech.
2.19. Now, if the Congo is to establish the juri sdiction of the Court in the present case, it
must do so under one or more of these treaties. Nothing needs to be said about the Torture
Convention, because Rwanda is not a party, so that is plainly not a basis for jurisdiction in this
case.
2.20. So far as the other treaties are concerned, while their scope ⎯ and their provisions on
jurisdiction ⎯ vary, they all have one feature in common. None of them contains what may be
termed a general provision conferring jurisdiction co mparable to that conferred by declarations
under the optional clause, or by an instrument like the General Act. Instead, each gives
jurisdiction ⎯ when it gives it at all ⎯ only on a restricted range of issues, generally confined to
the “interpretation and application” or, in one case, the interpretation alone, of the specific treaty.
It is incapable, Mr. President, of conferring juri sdiction over a dispute regarding the interpretation
or application of any other treaty, or over a dispute about the application of a rule of customary
international law. Thus, the Montreal Conventio n can confer jurisdiction only in respect of a
dispute regarding the interpretation or application of the provisions of the Montreal Convention. It
is irrelevant to a claim for violation of the Un ited Nations Charter or the customary international
law on the protection of natural resources.
2.21. Mr.President, it needs only a glance at the Congolese Application in the present case
to show that most of what it is about could ne ver fall within any of the treaties invoked by the
Congo, even if the Congo could show that it h as complied with the preconditions laid down by
those treaties for seising the Court ⎯ and we will show this morning that it cannot do that. The
heart of the present case, Mr. President ⎯ its central element ⎯ is an allegation by the Congo that
Rwanda is guilty of aggression, c ontrary to Article 2, paragraph4, of the Charter of the United
Nations. It is an allegation which Rwanda most emphatically rejects but, more importantly for
present purposes, it is an allegation which could not ⎯ on any analysis ⎯ fall within the
jurisdictional provisions of any of the treaties on which the Congo relies.
2.22. The same is true of the Congo’s allegations of violations of the Charter of the African
Union, the 1949 Geneva Conventions, the International Covenant on Civil and Political Rights, the - 20 -
Universal Declaration of Human Rights ⎯ and I give examples, rather than a comprehensive list.
None of these allegations could fall within any of the jurisdictional provisions on which the Congo
now seeks to rely. The same is true of the Cong o’s claim that Rwanda has plundered its natural
resources, for that claim must rest upon customary international law and not upon any of the
treaties invoked by the Congo.
2.23. It follows, Mr. President, that the issue between the Congo and Rwanda can, in fact, be
narrowed down. It comes to this: given that most of the claims made in the Congo’s Application
fall outside the jurisdiction of the Court on any an alysis, can some part of the claim be brought
within one of the relatively short list of ju risdictional provisions on which the Congo relies?
Rwanda says that it cannot.
4. The effect of the Court’s Order of 10 July 2002
2.24. Now, these issues were, of course, considered on a prima facie basis in the Court’s
Order of 10 July 2002. In that Order, the Court he ld: first, that none of the treaties invoked by the
Congo appeared, prima facie, to confer juri sdiction upon the Court to indicate the measures
sought 19. The only qualification ⎯ and it is a very slight one ⎯ is that the Court did not need to
make a finding regarding prima facie jurisdiction under the Montreal Convention, because it held
that none of the provisional measures requested by the Congo concerned rights claimed under that
20
Convention in any event .
That was the first ruling. The second ruling of the Court is that it could not be said that there
21
was such a manifest lack of jurisdiction as to justify removing the case from the Court’s List .
2.25. In other words, the situation after the 2002 Order was comparable to that which existed
after the Court’s 1999 provisional measures Orders in the eight Legality of Use of Force cases
which remained on the Court’s List, as opposed to the two (against Spain and the United States of
America) which the Court removed from its List in 1999.
19
Order of 10 July 2002, para. 89.
20Ibid., para. 88.
21
Ibid., para. 91. - 21 -
2.26. Nevertheless, Mr. President, in its Count er-Memorial, the Congo affects to find in the
Court’s ruling on the second of these two points some support for its contention that the Court
22
should find that it has jurisdiction over the Congolese claims .
2.27. With respect, Mr.President, that cannot be right. Consistent with the approach it has
always taken in the past, the Court made clear, in its 2002 Order, that “the findings reached by the
Court in the present proceedings in no way prejudge the question of the jurisdiction of the Court to
deal with the merits of the case or any questions re lating to the admissibility of the Application, or
relating to the merits themselves” 23; and the Court added, in quite important language, that its
findings “leave unaffected the right of the Governments of the Congo and of Rwanda to submit
their arguments in respect of those questions” 24.
2.28. Quite apart from this explicit statement by the Court, simple common sense shows that
a finding by the Court that there is not a manifest absence of jurisdiction, especially when coupled
with a finding that there is no prima facie basis for jurisdiction cannot afford any support to the
State which seeks to establish the jurisdiction of the Court.
2.29. Of course, the corollary of that proposition is that the 2002 Order does not dispose of
the jurisdictional issues in Rwanda’s favour either. We quite accept that. But there is one respect
in which the decision that the treaties invoked by the Congo do not prima facie afford a basis for
the jurisdiction of the Court has important implications for the current phase of the proceedings. A
ruling of this kind, made on a request for the indi cation of provisional measures, is not a definitive
ruling on jurisdiction for the very good reason th at rulings on provisional measures are necessarily
made swiftly, in response to a claim of urgency and without the detailed pleading by the parties
which would be expected in a preliminary objecti ons phase or a hearing on the merits. The Court,
therefore, leaves it open to the parties to subm it fresh arguments or evidence relevant to the
jurisdictional issue at a later phase of the proceedings.
22
Counter-Memorial, paras. 18-21.
23Order of 10 July 2002, para. 90.
24
Ibid.. - 22 -
2.30. It was therefore entirely open to the Congo in its Counter-Memorial to address fresh
arguments to the Court, or to adduce evidence wh ich was not before the Court in 2002, to try to
persuade the Court that, notwithstanding its ru ling on a prima facie basis the Court should now
hold that jurisdiction does in fact exist. Bu t, Mr.President, a State which has lost on the
jurisdictional issue at the provisional measures ph ase of a case, as the Congo lost in 2002, cannot
expect to secure a decision in its favour at a preliminary objections phase unless it does present
fresh arguments or adduce new eviden ce. If that State merely repeats ⎯ or even just refers back
to ⎯ its arguments at the provisional measures stage and offers nothing more, then logic and
juridical consistency mean that there is only one answer which can be given ⎯ just as there was no
prima facie basis for jurisdiction at the earlier phase, so there can be no definitive basis for
jurisdiction now.
2.31. This consideration is important in th e present case, because the Congo has chosen to
address no new argument to the Court regarding sev eral of the grounds of jurisdiction which it has
25
invoked and has merely referred back to its arguments in the 2002 proceedings . For example, it
has said nothing whatever in its Counter-Memoria l regarding its assertion that Article66 of the
Vienna Convention on the Law of Treaties could afford a basis for jurisdiction. That argument was
comprehensively rejected by the Court in para graphs73 to 75 of the July 2002 Order and the
Congo has made no effort whatever to meet any of the criticisms of the argument contained in
those parts of the Order. In those circumst ances (as well as for the reasons advanced in
paragraphs3.75 to 3.76 of the Memorial), Rw anda respectfully submits that this head of
jurisdiction must be rejected. And I shall say no more about it.
2.32. Similarly, in other parts of the Order, the Court pointed to the fact that the Congo had
failed to adduce sufficient evidence to show that the preconditions imposed by particular treaties
for seising the Court had been met. The Congo has, of course, had ample opportunity in preparing
its Counter-Memorial to put such evidence (if, i ndeed, it existed) before the Court but it has not
done so. The result is, Mr. President, that, when the Court now comes to take a definitive decision
as to whether those preconditions for seisin have b een met, it has before it only the material which
2Counter-Memorial, para. 26. - 23 -
it found unconvincing in 2002. Well, that materi al has not become any more convincing with the
passage of three years.
2.33. I shall, however, develop this point furt her in relation to the compromissory clauses of
the two treaties most directly affected, namely the Convention on the Elimination of Discrimination
against Women and the Montreal Convention on Crimes against Aircraft, to which I will now turn.
5. The Convention on the Elimination of Discrimination against Women
2.34. Let me turn, first, to the Convention on the Elimination of Discrimination against
Women.
2.35. The provision on which the Congo seeks to base the jurisdiction of the Court is
Article 29, paragraph 1, which is in the following terms
“Any dispute between two or more States Parties concerning the interpretation
or application of the present Convention whic h is not settled by negotiation shall, at
the request of one of them, be submitted to arbitration. If within six months from the
date of the request for arbitration the parties are unable to agree on the organization of
the arbitration, any one of those parties may refer the dispute to the International Court
of Justice by request in conformity with the Statute of the Court.”
And, as we will see, Mr.President, the terms of Article14 of the Montreal Convention are very
similar, almost identical to Article 29 of this Convention.
2.36. This clause adopts an approach to the settlement of disputes which (with minor
variations) is common to a great many multilateral conventions. Under this type of clause, the
Court is not the primary forum for the settlement of a dispute. On the contrary, the first sentence of
the provision makes clear that there must first be an attempt to settle the dispute by negotiation. If
that fails, then, at the request of either party, the dispute shall be submitted to arbitration. The
language is mandatory. Only if it proves impossi ble for the parties to agree upon the organization
of the arbitration, does the second sentence make possi ble recourse to the Court. The Court’s role
is, therefore, as a forum of last resort or a “long stop”, which cannot come into play unless and until
there has been a good faith attempt to settle the di spute by negotiation and an attempt to organise
an arbitration of that dispute.
2.37. Mr. President, we say that Article 29(1 ) lays down four requirements which must be
satisfied before the Court has jurisdiction. - 24 -
⎯ First, there must be a dispute between the parties concerning the interpretation or application of
the Convention;
⎯ secondly, it must have proved impossible to settle that dispute by negotiation;
⎯ thirdly, one of the parties must have made a request for the submission of the dispute to
arbitration and the parties must have been unable to agree upon the organization of the
arbitration; and
⎯ lastly, six months must normally have elapsed fro m the date of the request for arbitration
before proceedings can be commenced in the Court.
2.38. Mr. President, the Congo disputes almost every point in this analysis, so it is very much
an issue between the Parties today. Its argum ents on these issues are scattered throughout the
second half of its Counter-Memorial and are not always easy to follow. With respect, they are at
times contradictory. Nevertheless, in so far as Rw anda has been able to piece them together, the
Congo’s arguments suggest that there are six matte rs which remain in dispute between the Parties
regarding the issue of jurisdiction under this Convention.
1. Rwanda’s objections go to jurisdiction not admissibility
2.39. The first question is whether Rwanda’s objections are really jurisdictional objections at
all. In its Counter-Memorial, th e Congo contends that they are really objections which go only to
the admissibility of the Application and not to jurisdiction. Mr. President, that argument is contrary
both to principle and to the way in which the Court has consistently treated such issues in the past.
2.40. So far as principle is concerned, the re asoning is simple. As the Court has repeatedly
made clear, its jurisdiction is dependent upon the consent of the parties. The parties may attach
conditions to that consent, conditions which may be of a substantive or a procedural character.
Where a party has attached such conditions, then the jurisdiction of the Court will exist if ⎯ but
only if ⎯ those conditions have been satisfied. The States party to the Convention on the
Elimination of Discrimination against Women cho se to attach both substantive and procedural
conditions to their consent to the jurisdiction of th e Court. Substantively, they stipulated that
consent was given only in respect of a particular category of disputes. Procedurally, they stipulated
that consent was given only once the prior steps of negotiation and an attempt to arbitrate the - 25 -
dispute had been taken and had proved unsuccessful. Since those conditions limit the consent to
jurisdiction, a submission that they have not been complied with is an objection to the jurisdiction
of the Court and not an argument as to admissibility.
2.41. This logic was recognized by the Court in its 2002Order in the present case, when it
described the requirements of entering into nego tiations and undertaking arbitration proceedings as
26
the “preconditions on the seisin of the Court set by Article 29 of the Convention” .
2.42. The Court had earlier adopted the sa me approach in the case concerning the Aerial
Incident at Lockerbie between Libya and the United States of America, a case in which jurisdiction
was asserted by Libya on the basis of Article 14 (1) of the Montreal Convention ⎯ which, as I say,
is in very similar terms to Article 29 of this Conve ntion. In that case, the Court treated the United
States objections that the requirement of undertaking arbitration proceedings had not been met as a
jurisdictional objection. It did of course reject the objection on the facts but there was no doubt
27
that it treated it as going to jurisdiction and not to admissibility .
2. Rwanda’s objections concern the specific re quirement of the Convention, not a general
duty to negotiate or arbitrate before seising the Court
2.43. The second point in issue between the Parties concerns the Congo’s argument that
there is no general rule of international law which compels States to negotiate or have recourse to
arbitration before seising the Court 28. Well, Mr.President, that proposition may very well be
correct but it has no bearing whatever on the argumen ts in this case. Rwanda has never suggested
that general international law imposes such a lim itation upon the jurisdiction of the Court. Its
objection is altogether different. What Rwanda maintains is that ⎯ whatever the position may be
under general international law ⎯ the specific treaty provision on which the Congo is trying to
found jurisdiction in this case makes an attempt to negotiate a settlement of the dispute under that
Convention, and an attempt to undertake arbitra tion proceedings, preconditions to the seisin of the
Court. In the case of the Convention on the Elim ination of Discrimination against Women, it is
26Order of 10 July 2002, para. 79.
27I.C.J. Reports 1998, p. 115, paras. 19 and 20.
28
Counter-Memorial, paras. 104-113. - 26 -
obvious from the express language of Article 29(1) that that is the case. The learned authors
quoted by the Congo are not addressing this issue at all but the quite different question ⎯ and it is
a question which, interesting as it is, has no bearing on the issues before the Court today ⎯ of
whether the Charter of the United Nations or customary international law imposes a general
obligation upon States to pursue one method of peacefu l settlement before they pursue another. In
tackling that issue, the Congo is tilting at a windmill. It is not responding to the arguments brought
by Rwanda.
3. The four preconditions laid down by Article 29 (1) are separate and cumulative
2.44. The Congo also takes exception to the four separate conditions identified by Rwanda as
29
flowing from the language of Article 29(1) . The Congo prefers a simpler analysis into two
conditions which it puts in its Counter-Memorial in these terms:
“1)le différend doit impliquer l’applica tion or l’interprétation de la convention
intéressée;
2) l’impossibilité d’organiser une procéd ure d’arbitrage, ét ant entendu que l’échec
n’en devient patent qu’au terme de six mois à partir de la demande d’arbitrage” 30.
2.45. Mr.President, there is really very little in this. The first condition set down by the
Congo is essentially the same as the first conditi on identified by Rwanda. The second Congolese
condition simply rolls into one: the third and fourth conditions id entified by Rwanda. It doesn’t
really matter whether you treat them as one or two separate elements. The only substantive
difference ⎯ but it is an important one ⎯ is that the Congolese approach ignores the requirement
of negotiation altogether. Mr.President, the di fference between Rwanda and the Congo on this
point is quite simply a matter of whether Article 29 (1) means what it says. That provision confers
jurisdiction on the Court only in respect of a di spute which is not settled by negotiation. It is
implicit in that provision that a good faith attempt to try to resolve the dispute by negotiation must
be made if this condition is ever to be satisfied. Indeed, an analysis of the travaux préparatoires of
the Convention shows that Article 29 (1) was adopted in its present form after at least one State had
29
Counter-Memorial, paras. 30-31.
30
Ibid., para. 31. - 27 -
insisted that the text should be explicit “on the qu estion of negotiations prior to the appeal to the
31
International Court of Justice” .
2.46. So, Mr.President, while we accept that in the present case nothing turns on whether
one treats the requirement to attempt arbitrati on and the six months’ rule as one requirement ⎯ as
the Congo does ⎯ or two ⎯ as Rwanda did ⎯ we maintain that there is no escaping the fact that
the Congo must meet each of the following requireme nts if it is to establish the jurisdiction of the
Court ⎯
First, that there is an identified dispute between the Congo and Rwanda regarding the
interpretation or application of the Convention;
Secondly, that the Congo has attempted without success to settle that dispute by negotiation;
and
Thirdly, that the Congo has requested arbitration of that dispute and the Congo and Rwanda
were unable to agree upon the organization of the arbitration.
2.47. These requirements are cumulative. The Congo’s jurisdictional argument fails unless it
can satisfy all three. Moreover, it is the Congo wh ich bears the burden of proof in respect of any
facts needed to establish that a requirement has been met. Although this appears to come as a
surprise to the Congo, which has complained that Rwanda is seeking to transfer the burden of proof
32
with regard to the content of negotiations , it is a well-established principle of international law
that, as the Court put it in the Nicaragua case, “it is the litigant seeking to establish a fact who
33
bears the burden of proving it” , and it is for the claimant State to prove that the preconditions for
seisin the Court have been satisfied.
2.48. Rwanda maintains that the Congo has ma nifestly failed to discharge that burden with
respect to any, let alone all, of the three requirements. And I will look at each of them in turn.
31
Rehof, Guide to the Travaux Préparatoires of the United Na tions Convention on the Elimination of All Forms
of Discrimination against Women (Martinus Nijhoff, 1993), p. 239.
32Counter-Memorial, para. 58.
33
Military and Paramilitary Activitiein and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, I.C.J. Reports 1984, p. 437, para. 101. - 28 -
4.The requirement of a dispute regarding the interpretation or application of the
Convention on the Elimination of Discrimination against Women
2.49. Let us first consider the requirement that there be a dispute regarding the interpretation
or application of the Convention on the Elimination of Discrimination against Women.
2.50. The Court has frequently had to consider this requirement of the identification of a
dispute as a precondition to seisin of the Court. And its approach has consistently been to insist
that, as it put it in the South West Africa cases:
“[I]t is not sufficient for one party to a contentious case to assert that a dispute
exists with the other party. A mere asserti on is not sufficient to prove the existence of
a dispute any more than a mere denial of the existence of the dispute proves its
non-existence. Nor is it adequate to show that the interests of the two parties to such a
case are in conflict. It must be shown that the claim of one party is positively opposed
by the other.”34
2.51. But in the present case, Mr. President, the Congo has never asserted a claim under the
35
Convention which Rwanda could positively oppose. It argues ⎯ in the Counter-Memorial ⎯
that it repeatedly complained of Rwanda’s conduc t but it has offered no evidence that it made a
claim (in any form or forum) specifically alleging a violation of the Convention on the Elimination
of Discrimination against Women.
2.52. Now, it is true that, as Judge Higgins pointed out in her separate opinion in the 2002
proceedings, the practice of human rights tribuna ls faced with a complaint by an individual
petitioner that a State has violated a particular hu man rights convention has been not to insist that
the individual must first identify the precise provision of the treaty. Since the 2002 proceedings, I
thought long and hard about the implications of th at practice for the present phase of this case. In
my submission, there are three r easons why that practice does not operate to relieve the Congo of
the duty to specify the nature of the dispute between itself and Rwanda in relation to the
Convention and to do so as a precondition to the seisin of the Court.
2.53. The first reason is that the practice to which Judge Higgins re ferred was developed in
the context of claims brought by individuals agai nst States. There is an inevitable inequality
between the parties to such proceedings which it is entirely appropriate for the tribunal to seek to
34
South West Africa cases, I.C.J. Reports 1962, p. 328.
35
Counter-Memorial, paras. 46-51. - 29 -
redress. But that consideration is not present in this case, which concerns proceedings between two
equal, independent, and sovereign States.
2.54. The second consideration is that in her separate opinion, Judge Higgins said “there is
no reason for the International Court of Justice, in establishing whether it has prima facie
jurisdiction for purposes of the indication of provisional measures, to suggest a more stringent
36
test” . In the present phase of the proceedings, however, the issue is different. The question today
is whether the Congo has satisfied the preconditions for the seisin of the Court, a task entirely
different from that which confronts a human rights tribunal faced with an individual petition. As
we have seen, those conditions include a good faith attempt to resolve the dispute by negotiation, a
request for arbitration of the dispute, an attempt to organize an arbitration in respect of the dispute.
Those conditions could not be comp lied with unless the dispute to which they relate has first been
identified with sufficient precision.
2.55. The third consideration, Mr.President, is that Article 29(1) confers jurisdiction upon
the Court in terms effectively identical to those of a large number of other treaties, most of which
are not directly concerned with human rights. T hus, the language of Article 29 (1) was apparently
taken from that of the equivalent provision in th e International Convention against the Taking of
37
Hostages . The practice of human rights tribunals woul d not be relevant to the interpretation of
such clauses in a treaty like th e Hostages Convention, or the Montreal Convention, and it is
difficult to see that there is a case for placing a different interpretation upon identical or
near-identical language on the preconditions for seisin of the Court, depending on whether the
treaty in which the language appears is a human rights treaty or not.
2.56. Accordingly, it is Rwanda’s case that in order to found jurisdiction under Article 29, it
is essential that the Congo has identified the preci se dispute between itself and Rwanda relating to
the interpretation or application of the Convention. That it had plainly failed to do.
36
Emphasis added.
37
Rehof, op. cit., p. 239. - 30 -
5. The requirement of negotiations
2.57. Fifthly, even if the Congo had identifie d a dispute between itself and Rwanda relating
to the Convention, Article 29 requires that the Congo must have attempted to resolve that dispute
by negotiations. I emphasize that dispute, because it is plain that the Congo is labouring under a
considerable misapprehension regarding the nature of this requirement and the argument which
Rwanda is making.
2.58. The Congo appears to believe, both fro m its 2002 argument and its Counter-Memorial,
that all that it need show is that it attempted to negotiate with Rwanda, about something, without
needing to show what it was that it attempted to negotiate about. Thus, the Congo points to a series
of meetings, identified in paragraph 51 of the Court’s Order of 10 July 2002, at which it claims that
the two States attempted to negotiate a settlement of the armed conflict between them. But,
Mr.President, that is a very different matter from demonstrating that there was an attempt to
negotiate a settlement of a specific dispute about the interpretation or application of the Convention
on the Elimination of Discrimination against Wo men and it is only the attempt to negotiate that
dispute which is relevant to satisfying the conditions of Article 29 (1).
2.59. The Congo’s confusion on this point is plain from its misquotation of a passage in the
Rwandan Memorial. At paragraph 102 of its Co unter-Memorial, the Congo criticizes Rwanda for
saying, in paragraph 3.65 of the Memorial, that “t he reality is that the Congo has made no attempt
to negotiate with Rwanda”. What Rwanda actually said was this:
“Although the Congo has referred to the alleged impossibility of negotiating a
peaceful settlement with Rwanda, the Congo has here confused the settlement of the
armed conflict, the nub of th e allegation it makes, with the settlement of the specific
dispute which it asserts under the Montreal Convention. The reality is that the Congo
has made no attempt to negotiate with Rwanda on the allegations about the
38
destruction of the Boeing 727.”
And it is that last phrase that Congo leaves out in its quotation from what we said. The point under
the Montreal Convention is identical in this respect to the point on the Convention on the
Elimination of Discrimination Against Women.
2.60. The Congo’s failure to grasp this critical point of the distinction between negotiating a
settlement of the armed conflict and negotiating ab out a specific dispute on a particular treaty is
3Italicized passages omitted from the Congo’s quotation of the Rwandan Memorial. - 31 -
then demonstrated in even starker form in paragraph 103 of its Counter-Memorial, when the Congo
says this:
“La République démocratique du Cong o fait vigoureusement observer que le
train d’allégations ci-dessus du Rwanda, en tant qu’elles visent à nier l’existence de
toute négociation, et même de toute tent ative de négociation de la part de la
République démocratique du Congo, prennent à contre-pied la conviction de la Cour.”
So what Rwanda is saying flies in the face of what the Court said in 2002. But what was it that the
Court had said and that the Congo then goes on to quote? The Court’s comment ⎯ in
paragraph 79 of its Order ⎯ was this:
“at this stage in the proceedings the Congo has not shown that its attempts to enter into
negotiations or undertake arbitration pro ceedings with Rwanda [and the Court then
refers back to paragraph 51 of the Order which the Congo accepts as a summary of the
evidence put before it] 39concerned the application of Article 29 of the Convention on
40
Discrimination against Women” .
2.61. In other words, yes, the Court was accep ting that there had been negotiations. Rwanda
accepts that as well. But those negotiations and at tempts to undertake arbitration had not been
shown to concern the application of the specific treaty on which the Congo now relies. In
otherwise, Mr. President, the Court was there upholding precisely the point which Rwanda made in
2002 and has repeated in its Memorial, namely th at the negotiations into which the Congo and
Rwanda entered were about the conflict as a wh ole, not about a specific dispute under the
Convention on the Elimination of Discriminati on against Women and those negotiations did not,
therefore, satisfy the requirements of Article 29 (1).
2.62. The Court’s ruling was, of cour se, that the Congo had failed to show at the provisional
measures stage, that the negotiations concerned the application of the Convention. It was open to
the Congo to adduce fresh evidence in its Counter-Mem orial (if, of course, such evidence existed)
to show that the negotiations were in fact concerned with the application of that Convention. But it
has made no attempt whatever to do so. The Congo has attached only a handful of documents to its
Counter-Memorial. None of those documents give s even a hint that the negotiations between the
Congo and Rwanda at any point concerned the appli cation of the Convention on the Elimination of
39
See Counter-Memorial, para. 57.
40
Emphasis added. - 32 -
Discrimination Against Women. The Congo has, therefore, failed to adduce a single piece of
evidence ⎯ a single piece ⎯ in support of its case beyond what it had already produced to the
Court in 2002. The Court found that evidence insufficient and unconvincing then and I submit that
it must reach the same conclusion on that same evidence now.
2.63. Let me just add one word before I m ove on about the ten documents annexed to the
Counter-Memorial. All but one of them is at a very high level of generality and is irrelevant to the
issue currently under consideration. The one ex ception is the letter of 14January 2002 from the
Ministry of Posts, Telephones and Telecommunications of the Congo to the Secretary-General of
the International Telecommunications Union. In that letter the Congo protests about the use of the
international telephone prefixes for Rwanda and Burundi in telephone calls to certain parts of the
Congo. Now, quite why the Congo chose to annex th at document to its pleadings in this case is
something of a mystery to me and it may well be something of a mystery to the Members of the
Court as well. It is certainly difficult to see how the letter could possibly assist the Congo’s case on
jurisdiction under any of the treaties on which it re lies. But it would be wrong to assume that the
letter is wholly irrelevant to the issues currently be fore the Court, for what it shows is that even in
the middle of an armed conflict, the Congo was perf ectly well able to raise a detailed, technical
issue of this kind. And if it could write a letter specifically about telephone prefixes, it was surely
not beyond it to raise in negotiations, expressly, a dispute about specific provisions of the
Convention on the Elimination of Discrimination ag ainst Women or to request arbitration of that
dispute. But the fact of the matter is, it has not produced a single piece of evidence to suggest that
it did anything of the kind.
6. The requirement of arbitration
2.64. Lastly, Mr.President, even if the Congo had attempted to resolve a specific dispute
concerning the Convention by negotiation, that would only confer jurisdiction upon the Court if the
Congo had first requested arbitration of that dis pute and the Parties had been unable, within six
months of the date of the request, to agree upon the organization of the arbitration. This
requirement, first to seek arbitration, is a central part of the scheme of Article 29, paragraph1, of
this Convention, as it is of a great many other disputes clauses in multilateral treaties. But the - 33 -
Congo made no attempt whatever to request arbitr ation of any dispute under the Convention.
There could be no discussions on organization of an arbitration because no request for that
arbitration was ever made.
2.65. Again, Mr.President, the Congo appears to be labouring under the illusion that all it
has to do is to show that it suggested some form of arbitration about some form of dispute. But the
Court has already rejected that approach in its Order of 2002. What is required is ⎯ the Court was
clear then ⎯ that the Congo should have made a request for arbitration of the specific dispute
under the specific Convention, but it did not do so and it has adduced not one piece of evidence to
develop its case beyond what it was three years ago at the provisional measures stage.
2.66. The Congo complains that it had no diplomatic relations with Rwanda and that Rwanda
was reluctant to sit down at the table and talk to it. The record, incidentally, is rather different. But
even if the Congo’s allegations were true, that is not enough to lead to a different result. In the first
place, the Congo made the same point in 2002 and it was not considered sufficient then. It is also
noticeable that the Congo accepts that negotiations on a variety of matters did take place during the
relevant time between the two States but it has been unable to point to any request for arbitration in
connection with the Convention at any of those negotiating sessions. Finally, Mr.President, it is
striking to note the contrast between the present case and the Lockerbie dispute between Libya and
the United States. There were no diplomatic rela tions between Libya and the United States at the
relevant time in the Lockerbie case either, and there were far fewer negotiating contacts between
those two governments than there were in 2002 between Rwanda and the Congo. Yet Libya made
a request for arbitration of a specific dispute under the Montreal Convention, and it was that fact
which the Court relied upon in its 1998 Judgment to reject the jurisdiction objection raised by the
United States and to hold that Libya had complie d with the arbitration provision in Article14,
paragraph 1, of the Montreal Convention.
6. The Montreal Convention
2.67. Mr. President, let me, in conclusion, say a few words about the Montreal Convention. I
can be far briefer here, as many of the arguments are the same as those I have just set out in relation
to the Convention on the Elimination of Discrimination against Women. - 34 -
2.68. The provision of the Montreal Convention on which the Congo seeks to rely is
Article14, paragraph1: “Any dispute between two or more Contracting States concerning the
interpretation or application of this Convention which cannot be settled through negotiation, shall,
at the request of one of them, be submitted to arbitration.” And then the second sentence on
organization of the arbitration and the six-months’ rule is identical to Article 29(1). The only
difference between the first sentences of the two provi sion is that Article14 refers to a dispute
which cannot be settled through negotiation , whereas Article 29(1) speaks of a dispute which is
not settled by negotiation . For the reasons already given, we submit that nothing turns on that
distinction.
2.69. Mr. President, Rwanda has set out its detailed jurisdictional arguments on the Montreal
Convention three times. First, in its pleadings in the Congo’s first Application in 1999, which was
then discontinued by the Congo in 2001. Secondly, in our oral submissions in the present case in
2002; and thirdly, in paragraphs 3.45 to 3.71 of our Memorial. The Congo has at no point sought
to refute those detailed arguments except by the blandest and most general of assertions.
2.70. The fact is that the Congo has completely failed to meet any of the requirements laid
down by Article 14 as preconditions to seising the Court.
2.71. The Congo did not define with any degree of precision a dispute concerning the
application of the Montreal Convention between itself and Rwanda. In its complaint to ICAO
regarding the shooting down of this aircraft, it alleged that the plane was shot down not by Rwanda
but by Congolese rebel forces. It then made identical allegations against Uganda and has continued
to pursue those allegations against Uganda in the case which is currently under consideration by the
Court without, so far as we have been able to discover, at any time making any attempt to reconcile
its allegations against the two States. For good measure, incidentally, it also made an identical
allegation against Burundi in an application to this Court in 1999, which it discontinued in 2001.
2.72. What it did not do, Mr. President, afte r the ICAO Council adopted a declaration on the
matter in 1999, was to make any attempt to negotia te on this issue with Rwanda, nor any request
for arbitration with Rwanda of a dispute under the Montreal Convention. It had the opportunity to
do so, it chose not to take it. The simple f act is that the Congo has failed to satisfy the - 35 -
preconditions for seising the Court in accordance wi th Article 14 and the Court accordingly lacks
jurisdiction under that provision also.
2.73. Mr. President, that concludes my argument regarding jurisdiction, although I would ask
you to give me the floor at the end of this morning to address you, very briefly, on the subject of
admissibility and to sum up Rwanda’s case. I imagin e that this would be a convenient moment for
the Court to adjourn for a coffee break and when it resumes I would invite you to call upon
Ms Jessica Wells to address you.
The PRESIDENT: Thank you, Professor Greenw ood. it is indeed time for the Court to
adjourn for ten minutes, after which I will give the floor to Ms Wells.
The Court adjourned from 11.20 to 11.40 a.m.
The PRESIDENT: Please, be seated. Now, I give the floor to Ms Jessica Wells.
WMEsLLS:
1. Introduction
3.1. Mr. President, Members of the Court. May it please the Court. May I begin by saying
that it is an honour for me to appear before this Court on behalf of Rwanda. As the learned Agent
of Rwanda has outlined, I shall develop our submissi ons in relation to four of the Conventions on
which the Congo seeks to found the jurisdiction of th is Court. I intend to deal first with the
Genocide Convention and the Convention on th e Elimination of all Forms of Racial
Discrimination. I will then proceed to our s ubmissions on the respective Constitutions of the
World Health Organization and Unesco.
2. The Genocide Convention
3.2. I do not propose to discuss at great length either the Genocide Convention or the Racial
Discrimination Convention. Our submissions on both Conventions are substantially the same, and
the arguments were fully aired before this Cour t during the oral proceedings at the provisional
measures phase. We only return to them now because the Congo has maintained its claim to
jurisdiction in respect of them. - 36 -
3.3. It is not disputed, Mr.President, that both the Congo and Rwanda are parties to the
Genocide Convention, nor that ArticleIX of that Convention contains a provision for the
submission of a range of disputes to the Court. However, Rwanda, on acceding to the Convention,
41
entered a full reservation to ArticleIX . Accordingly, the Genocide Convention cannot, in this
instance, found the jurisdiction of the Court.
3.4. At the provisional measures phase, the Congo raised a number of arguments in response
to Rwanda’s reservation to Article IX. I do not wish to detain th e Court with a lengthy recital of
the Congo’s arguments and Rwanda’s counter-ar guments. Both are fully elaborated in our
Memorial of January2003 4. I would simply wish to remind the Court of its response to the
Congo’s arguments contained in the Order of 10July2002. The Court’s conclusions, at
paragraphs 71 and 72, can be summarized as follows:
(1) The erga omnes character of a norm and the rule of consent to jurisdiction are two different
things.
(2) It does not follow from the mere fact that rights and obligations erga omnes are at issue in a
dispute that the Court has jurisdiction to adjudicate upon that dispute.
(3) The Genocide Convention does not prohibit reservations.
(4) The Congo did not object to Rwanda’s reservation at the time it was made.
(5) The reservation does not bear on the substance of the law, but only on the Court’s jurisdiction.
Therefore it does not appear to be contrary to the object and purpose of the Convention.
(6) Finally, it is immaterial that the Internati onal Criminal Tribunal for Rwanda was established at
Rwanda’s request.
(7) And it is likewise immaterial that Article 120 of the Rome Statute of the International Criminal
Court prohibits all reservations to that Statute.
3.5. Mr.President, the Congo has failed to respond to any of these points in its
Counter-Memorial. It is respectfully submitted that the logical result of the Court’s determinations
4The full text of the Rwandan reservation can be found tab9, p.140 of the anne xes to the Memorial of
Rwanda.
42
Paras 3.13-3.23. - 37 -
in 2002 must be that the Rwandan reservation is valid. Consequently, Article IX of the Genocide
Convention cannot be relied upon to found the jurisdiction of the Court.
3.6. This conclusion is consistent with the a pproach of the Court to the similar reservations
43
of Spain and the United States of America in the Legality of the Use of Force cases . In those
cases the Court decided that the Genocide Conven tion “manifestly does not constitute a basis of
jurisdiction in the present case” and it removed the cases from the Court’s List. In its Order of
July2002, the Court in the present case did not consider that there was a manifest lack of
jurisdiction and it refused to accede to Rwanda’s request to remove the case from its List. It should
be noted, however, that this conclusion was addres sed to the totality of the Congo’s alleged bases
of jurisdiction. It does not, therefore, detract from the clarity of the Court’s 2002findings in
relation to ArticleIX of the Genocide Convention. Neither does it detract, in our respectful
submission, from the inevitability of a conclusion of lack of jurisdiction at this stage of the
proceedings.
3. The Convention on the Elimination of All Forms of Racial Discrimination
3.7. Mr.President, the position is essentially the same in relation to the Racial
Discrimination Convention. Again, it is not disputed that both States are parties to this Convention,
nor that it contains, in Article22, a compromi ssory clause. Once again, however, on acceding to
this Convention, Rwanda entered a full reservation to that compromissory clause 44. Consequently,
Rwanda again submits that Artic le 22 cannot be relied upon as a basis for the Court’s jurisdiction
in the present case.
3.8. In the oral proceedings of June2002 , the Congo argued that Rwanda’s reservation to
Article 22 was “unacceptable, because it would amount to granting Rwanda the right to commit the
acts prohibited by the Convention with complete impunity”. It was further argued by the Congo
that this would be contrary to the object and purpose of the Convention. It should be noted that no
further arguments have been put forward by the Congo in its Counter-Memorial.
4Yugoslavia v. Spain; I.C.J. Reports 1999(I) , p.61Yugoslavia v. United States of Am erica, I.C.J. Reports
1999 (I), p. 196.
44
The full text of the Rwandan reservation can be found atab 9, p. 103 of the annexes to the Memorial of
Rwanda. - 38 -
3.9. It is admitted by Rwanda that Article 20, paragraph2, of the Racial Discrimination
Convention prohibits reservations which are inco mpatible with its object or purpose. But,
Mr.President, it is unnecessary to enter into a detailed examination as to whether Rwanda’s
reservation is incompatible in this case. Article 20, paragraph 2, provides a simple mechanism for
determining the incompatibility of a reservation ⎯ namely if two thirds of the States parties to the
Convention raise an objection to it. At paragr aph67 of its Order of 10July2002, the Court
confirmed that the Rwandan reservation had not a ttracted the requisite number of objections. The
Court further noted that “the reservation does not appear to be incompatible with the object and
purpose of the Convention” and that the Congo itself did not object to the reservation when it
acceded to the Convention in 1976.
3.10. Mr.President, as with the Genocide Convention, it is respectfully submitted that the
conclusions of the Court of 10 July 2002 speak for themselves and that it is unnecessary for me to
detain the Court any longer this morning with further discussion on the point. The Rwandan
reservation is valid, and, accordingly, Article22 cannot provide a basis for the jurisdiction of the
Court.
I will now move to consider the Constitution of the World Health Organization.
4. The Constitution of the World Health Organization
3.11. In response to the Congo’s attempts to base the jurisdiction of the Court on Article 75
of the WHO Constitution, Rwanda relies on two dis tinct arguments. First, the Congo has failed to
establish the applicability of the WHO Constitution to its claim against Rwanda. Secondly, as with
the Convention for the Elimination of Discr imination Against Women and the Montreal
Convention, Article75 establish es preconditions to the jurisdic tion of the Court. In our
submission, these preconditions have not been satisfied.
3.12. Article 75 provides as follows:
“Any question or dispute concerning the interpretation or application of this
Constitution which is not settled by negotiatio n or by the Health Assembly shall be
referred to the International Court of Justic e in conformity with the Statute of the
Court, unless the parties concerned agree on another mode of settlement.”
3.13. Turning first to the applicability of the Constitution. This submission itself divides into
two limbs. First, although the Congo alleges th at Rwanda has breached the WHO Constitution, it - 39 -
does not specify which particular obligation, if any, Rwanda is alleged to have flouted. Both in the
oral proceedings of June 2002 and in its Memorial , Rwanda has invited the Congo to elaborate on
this issue. The Congo’s Counter-Memorial makes no effort to do so. The only provision of the
WHO Constitution to which the Congo has ever referred is Article 2. In its Order of July 2002, this
Court noted that “an initial examination of that Constitution shows that Article2 thereof, relied
45
upon by the Congo, places obligations on the Organization, not on the Member States ”.
3.14. A closer examination of the structure of the Constitution confirms that this is indeed
46
the case .
3.15. The appropriate starting place for this review is Article 2 itself. This provision simply
contains a list of 22 “functions of the Organi zation” which are necessary to achieve the
Organization’s objective. It is clear, both from th e wording itself and from the nature of the listed
functions in Article2, that it does not impose any direct obligation on States themselves. This
conforms with the broad approach of the Constitu tion which, as the name suggests, establishes the
basic institutions, competences and working methods of the WHO, but does not per se address
substantive matters of world health. It is clea r from Chapter V of the Constitution that direct
obligations on Member States were intended to ar ise by means of conventions, agreements and
regulations proposed or adopted by the Health Assembly.
3.16. Secondly, the allegations made by the C ongo do not appear to give rise to a dispute
relating to the interpretation or application of the Constitution. It is clear from the Application that
the Congo considers this dispute to be founded on the alleged acts of ag gression of Rwanda. For
instance, on the very first page of the Application, the Congo states that:
“Ces atteintes graves et flagrantes découlent des actes d’agression armée
perpétrés par le Rwanda sur le territoire de la République démocratique du Congo en
violation flagrante de la souveraineté et de l’intégrité territoriale de la République
démocratique du Congo, garantie par les Chartes des Nations Unies et de
l’Organisation de l’unité africaine.”
This is but one example of a refrain that is repeated throughout the Application.
45
At paragraph 82.
46
The Constitution of the WHO is at tab 5, page 37 of the annexes to the Memorial of Rwanda. - 40 -
3.17. This situation is analogous to that wh ich faced this Court in relation to the WHO’s
request for an advisory opinion on the legality of the use by a State of nuclear weapons in armed
conflict . In considering whether it had jurisdiction to give an advisory opinion, the Court had to
address whether the question posed fell within the scope of the WHO’s proper activities. In finding
that it did not, the Court noted that:
“the question put to the Court... relates... not to the effects of the use of nuclear
weapons on health, but to the legality of the use of such weapons in view of their
health and environmental effects. Whatever those effects might be, the competence of
the WHO to deal with them is not depende nt on the legality of the acts that caused
them.” 48
3.18. The Court further found that the respons ibilities of the WHO are limited to the sphere
of public health. Broader issues relating to the use of force were within the competence of the
United Nations itself and accordingly not within th e responsibility of specialized agencies such as
the WHO.
3.19. Mr. President, applying th is reasoning, by analogy, to the present case, it is clearly not
enough for the Congo simply to assert that adverse consequences to health have resulted from the
situation on its territory. The essence of the C ongo’s case concerns the legality of the acts for
which Rwanda is alleged to be r esponsible. It does not concern the interpretation or application of
the WHO Constitution.
3.20. Rwanda’s second main submission on the WHO Constitution is of a procedural nature,
namely that the preconditions in Article 75 have not been satisfied. The first question which arises
is whether these preconditions are cumulative or altern ative. That is to say, whether, before a
dispute can be referred to the Court, it is n ecessary that both negotiations and settlement by the
Health Assembly be attempted, or whether it is sufficient if just one of these methods has been
utilized. The Congo, at paragraph 63 of its Counte r-Memorial, argues that the latter interpretation
is the correct one ⎯ that the parties are free to choose one or other method, and do not have to try
one after the other. In its Order of July2002, th e Court did not directly address this point, but
47
I.C.J. Reports 1996 (I), p. 66, paras. 21-27.
48
Ibid., para. 21. - 41 -
simply stated that, “at this stage in the pro ceedings the Congo has also not shown that the
49
preconditions on the seisin of the Court . . . have been satisfied ”.
3.21. Mr. President, in our submission, the na tural reading of Article 75 is that the two
methods of dispute resolution are cumulative. This point can perhaps best be demonstrated in the
following manner: the issue which Article75 seeks to resolve is whether this Court can exercise
jurisdiction over a given dispute. To answer th is, Article 75 poses a further question, namely, has
the dispute been resolved by either negotiations or the Health Assembly? Unless both mechanisms
have been tried, this question cannot be answered. If the Health Assembly has not been given an
opportunity, it is simply not possible to say whether or not the dispute has been resolved by it.
3.22. This interpretation is fortified by a matter which the Congo itself raises in its
Counter-Memorial, at paragraph 65. In this paragraph, the possibility of irreconcilable judgments
is discussed. The Congo appears to be suggesting that Article75 creates a potential problem of
inconsistent decisions being reached ⎯ presumably by the Health Assembly and by the Court.
However, if the preconditions in Article75 are viewed as cumulative, the possibility of
irreconcilable judgments can never arise. For, on this interpretation, Article 75 establishes a strict
order of precedence, under which the Court coul d not assume jurisdiction before the Health
Assembly had had an opportunity to resolve th e dispute. If the Health Assembly reaches a
decision, therefore, that will, in itself, prevent the Court from considering the dispute.
3.23. Mr.President, to an extent, it is unnecessary for the Court to decide whether the
preconditions are alternative or cumulative. For, in the submission of Rwanda, it is clear that
neither have been satisfied. There has never been any suggestion that any reference has been made
to the Health Assembly. Indeed, the Congo expr essly acknowledges this, at paragraph64 of its
Counter-Memorial, where it notes that “the Congo . . . opted for negotiations”. In relation to those
negotiations, however, the Congo does not elaborate on any specific attempts to reach a negotiated
settlement of a dispute regarding the interpretati on or application of the WHO Constitution. At
page 24 of its Application, the Congo simply asserts that:
“La perpétration et la continuation des actes de guerre empêchant tout
règlement de ce différend par voie de négoc iations, la République démocratique du
4Para. 82. - 42 -
Congo demande à la Cour de se déclarer compétente sur base de l’article 75 de la
Constitution de l’OMS.”
3.24. It appears that in this context, it relies on the same arguments which it has made in
relation to the Convention on the Elimination of Discrimination against Women and the Montreal
Convention, that is to say that any negotia tion was impossible because Rwanda refused to
participate. This issue has already been addressed by Prof essor Greenwood and it is unnecessary
for me to repeat his submissions. I would merely reiterate that it is not sufficient for the Congo
simply to assert that negotiation generally was impossible. The Congo must show that it has
attempted, in good faith, to negotiate a solution to this particular dispute.
5. The Constitution of Unesco
3.25. Finally, Mr. President, I turn to the Constitution of Unesco. The Congo relies upon
Article XIV, paragraph2, which provides tha t: “Any question or dispute concerning the
interpretation of this Constitution shall be referred for determinati on to the International Court of
Justice or to an arbitral tribunal, as the Ge neral Conference may determine under its rules of
procedure.”
3.26. As with Article 75 of the WHO Constitu tion, Rwanda will make submissions of both a
substantive and procedural nature.
3.27. Addressing first the substantive arguments: it will be noted that Article XIV,
paragraph2, is limited to disputes concerning the interpretation of the Constitution. It does not
extend to disputes concerning the application of the Constitution. This is narrower than the
compromissory clauses which have thus far been under discussion. In its Application, the Congo
summarizes its allegations under the Unesco Constituti on as follows: “Par le fait de la guerre, la
République démocratique du Congo est aujourd’hui incapable de remplir ses missions au sein de
50
l’Unesco . . .” At its highest, this would only amount to a dispute concerning the application of
the Constitution.
3.28. At paragraph 85 of its Order of July 2002, the Court stated that Article XIV,
paragraph2, provides for the re ferral of disputes only in respect of the interpretation of the
Constitution. It further noted that this did not app ear to be the object of the Congo’s Application.
5Application, p. 26. - 43 -
Unesco was invited by the Court to make written subm issions on this point. But in its letter to the
Court dated 13 October 2003, Unesco declined this invitation on the basis that it concurred entirely
with the view of the Court as expressed in para graph85 of the Order. No new arguments or
evidence have been presented by the Congo since th at Order to suggest that its allegations do
indeed concern the interpretation of the Constitution.
3.29. Mr. President, even if Article XIV (2) we re not limited to matters of interpretation, the
Congo has once again failed to explain how the Unesco Constitution is applicable to this dispute.
Rwanda’s submissions on this point essentially mirror the points which I have previously discussed
in relation to the WHO Constitution. I will therefor e run through them more briefly. First, it is
repeated that the essence of th e Congo’s case is the alleged acts of aggression committed by
Rwanda. Secondly, the Congo has failed to make cl ear which, if any, obligation under the Unesco
Constitution has been breached. In the Application 51 the Congo refers to Article I. But again this
simply outlines the purposes and functions of the organization. It does not impose any direct
obligations on the Member States. Again, this is true of the Constitution as a whole. Its function is
to establish the principal organs and worki ng methods of Unesco. Detailed policies and
52
programmes are promulgated by the General Conference . It follows that the Unesco Constitution
is not, and cannot be, relevant to the dispute before the Court.
3.30. Mr. President, I will now turn to our submissions on the procedural requirements of
Article XIV(2). Article XIV is again more limited than the other compromissory clauses under
consideration. The other Conventions provide th at once any preconditions have been satisfied, the
States parties themselves may refer a dispute to the Court. Article XIV is di fferent. Reference to
the Court may only be made “as the Genera l Conference may determine under its Rules of
Procedure”. Rule 38 of those Rules is the relevant provision for these purposes 53. It provides for
questions concerning the interpretation of the Cons titution to be referred to the Legal Committee.
51
Page 27.
52Article IV (B) Unesco Constitution (tab 6, p.59 othe Annexes to the Memorial of Rwanda). The only
obligations imposed directly on Member States by the Constitution are: a duty to mke arrangements for national
co-operating bodies (Article VII (1)) and to submit reports, as determined by the General Conference (Article VIII).
53
At tab 10, p. 160 of the Annexes to the Memorial of Rwanda. - 44 -
The Legal Committee may then either “decide by a simple majority to recommend to the General
Conference that any question concerning the interp retation of the Constitution be referred to the
International Court of Justice” (Rule 38(3)), or the Legal Committee may: “In cases where the
Organization is party to a dispute...decide by a simple majority, to recommend to the General
Conference that the case be submitted for final d ecision to an arbitral tribunal, arrangements for
which shall be made by the Executive Board.” (Rule 38 (4).)
3.31. Mr. President, it is abundantly clear from Rule38 that States do not have the power,
under Article XIV, unilaterally to refer a dispute to the Court. Such a reference can only be made
via the Legal Committee and the General Conferen ce. The Congo has at no time suggested that
these procedures have been adhered to.
3.32. It is to be noted that in its Counte r-Memorial, the Congo aligns ArticleXIV of the
Unesco Constitution with Article 75 of the WHO C onstitution. It appears to assume that the
provisions are identical, and it discusses them in th e same breath. But, as has been demonstrated,
Article XIV is, in fact, much narrower. It has carefully defined parameters. Simply to focus on the
alleged attempts at genera l negotiations is consequen tly particularly inadequate in this context. It
remains the case that the Congo has made no atte mpt to demonstrate that the preconditions in
Article XIV for the jurisdiction of the Court have been satisfied.
3.33. Mr.President, it is Rwanda’s contenti on that none of the four Conventions which I
have discussed this morning is capable of foundi ng the jurisdiction of the Court. I would now
respectfully ask you to call upon Professor Greenwood to conclude our submissions.
The PRESIDENT: Thank you, Ms Wells. I now give the floor to Professor Greenwood.
Mr. GREENWOOD:
4.1. Thank you, Mr. President. There is one remaining matter on which I wish to address the
Court before I briefly sum up the arguments of Rwa nda in this first round of oral argument. The
one remaining matter concerns admissibility. - 45 -
1. The inadmissibility of the present Application
4.2. Rwanda’s main submission is that th e Court lacks jurisdiction in respect of the
Congolese Application. In the alternative, how ever, we make a secondary submission that the
Application is inadmissible. The basis for this submission is that the Application is an abuse of the
process of the Court.
4.3. The Court will recall that in 1999 the Congo made identical applications against
Burundi, Rwanda and Uganda. The case between the Congo and Uganda has, of course, proceeded
to a hearing on the merits earlier this year.
4.4. With regard to the case against Rwanda, the 1999 Application sought to base jurisdiction
upon the Torture Convention, which is not in force for Rwanda, the Genocide Convention, in
respect of which the Rwandan reservation excludes th e jurisdiction of the Court, and the Montreal
Convention, the requirements for which have not be en satisfied and which would, in any event,
have related to only one tiny part of the Application.
4.5. The Government of Rwanda could have waited until the Congo had deposited its
Memorial and then challenged the jurisdiction of the Court but since it was apparent that there was
no jurisdiction in respect of the 1999 Application, Rwanda raised its preliminary objections at the
earliest possible moment and the Court ordered that pleadings should first be addressed to the
issues of jurisdiction and admissibility. Rwa nda filed its Memorial on these issues on
21April2000. After obtaining an extension of time for its own pleadings, the Congo suddenly
withdrew its Application ⎯ without ever having responded to the jurisdictional objections of
Rwanda ⎯ and the Court discontinued the case by an Order dated 30 January 2001.
4.6. Then inMay2002, the Congo made a fr esh application which is in most material
respects identical to the Application of 1999. Most important, Mr.President, in spite of the fact
that by May 2002 the proceedings between the Congo and Uganda were well under way, the Congo
simply repeated exactly what it had said in its 1999 Application regarding the allegations of the
shooting down of an aircraft at Kindu in October 199 8, again making no mention of the fact that it
was already pursuing the identical claim against Uganda and without offering any word of
explanation as to how it could reconcile these two clai ms. Nor, so far as we have been able to - 46 -
discover, has the Congo offered the Court any expl anation in its pleadings in the case against
Uganda of how it comes to be making the same allegation against Rwanda.
4.7. Mr. President, both by alleging the same incident was separately imputable to two States
(three if one also takes into account the discon tinued proceedings against Burundi) and by making
a fresh application substantially identical to its earlier, discontinued one with the addition only of a
few asserted bases of jurisdiction which are as weak as those originally invoked, the Congo is,
quite simply, playing fast and loose with the Court.
4.8. Contrary to what the Congo suggests in its Counter-Memorial, we are not saying that the
Court’s Order of 30 January 2001 discontinuing the earlier case of itself precludes the Congo from
54
making a fresh application . Nor are we saying that a State that has withdrawn an application may
never introduce a fresh application against the same defendant in respect of the same subject, where
there is a material change of circumstances, su ch as, for example, the failure of settlement
negotiations. But we do say that a State which brings an application to the Court, is faced with a
jurisdictional objection and backs away from respondi ng to that objection, preferring to withdraw
its application, should not be permitted to make all of the same allegations ⎯ including all the
same jurisdictional arguments ⎯ in a fresh application simply because it sees a tactical advantage
in doing so.
4.9. Mr. President, I recognize the novelty of this submission but the Court is the guardian of
its own procedures and has both a right and a duty to protect its integrity as an institution. In
Rwanda’s submission, that gives it the power to prevent its process being abused by a State which
makes, then withdraws, then makes again th e same allegations and which makes the same
allegations against more than one respondent State without any word of explanation as to the
relationship between those different allegations. It is that which, in our submission, makes the
Application in the present case inadmissible.
4.10. Before I leave the question of admissib ility, let me just clarify one matter. The Congo
devotes a not inconsiderable portion of its Counte r-Memorial to rejecting an argument that the
Pretoria Agreement of 2002 renders the present App lication inadmissible. That is an argument
5Counter-Memorial, paras. 84-86. - 47 -
which Rwanda has never made and does not seek to make now. It need not, therefore, trouble the
Court further. We referred to th e Pretoria Agreement not in respect of admissibility but solely in
order to show that the situation had changed factually since the hearings in June 2002.
2. Summary of the Rwandan arguments
4.11. Mr. President, let me then summarize wh ere we stand. In our submission, the Congo’s
case on jurisdiction is quite simply hopeless. Rwanda maintains that the Court lacks jurisdiction to
rule on Congo’s claims against it for seven reasons.
4.12. First, the Congo seeks to rely upon an approach to jurisdiction which is plainly
contrary to the jurisprudence of the Court and which ignores the fundamental principle that
jurisdiction can only be derived from the consent of the parties.
4.13. Secondly, one of the treaties relied upon by the Congo ⎯ the Torture Convention ⎯ is
not even in force for Rwanda.
4.14. Thirdly, two of the other treaties relied upon by the Congo ⎯ the Racial
Discrimination and Genocide Conventions ⎯ cannot afford a basis for the jurisdiction of the Court,
because, as MsWells has just shown you, Rwanda has entered reservations to the provisions
concerning jurisdiction, reservations which are sim ilar to ones already upheld by the Court, are
plainly valid and to which the Congo made no obj ection whatever until it turned up at the oral
hearings here in 2002.
4.15. Fourthly, neither Article29 of the Convention on the Elimination of Discrimination
against Women, nor Article 14 of the Montreal Convention can provide a basis for the jurisdiction
of the Court in the present case, because the Congo h as failed to establish that it has complied with
the preconditions for the seisin of the Court contained in either provision.
4.16. Fifthly, the Statute of the WHO cannot afford a basis for jurisdiction because the
Congo has not shown either that its case falls with in the substantive obligations imposed upon
States by that Statute or that the preconditions for seisin of the Court have been satisfied.
4.17. Sixthly, the Constitution of Unesco is manifestly in applicable to this case, which is not
about the interpretation of that Constitution a nd which has not been brought in the manner
prescribed by the Constitution and the Rules of Procedure adopted thereunder. - 48 -
4.18. Lastly, Mr.President, the Vienna Convention on the Law of Treaties has nothing
whatever to do with the present case and cannot afford a basis for jurisdiction.
4.19. For these reasons, Mr. President, Rwanda asks the Court to adjudge and declare that it
lacks jurisdiction in respect of the claims brought by the Congo or, in the alternative, to declare that
the Congolese Application is inadmissible.
Mr. President, that concludes the first round submissions on behalf of Rwanda.
The PRESIDENT: Thank you, Professor Greenwood.
This marks the end of today’s sitting. Th e Court will meet again tomorrow, 5July, at
10a.m. to hear the first round of oral argumen t of the Democratic Republic of the Congo on the
questions of jurisdiction and admissibility. Thank you.
The Court is adjourned.
The Court rose at 12.25 p.m.
___________
Audience publique tenue le lundi 4 juillet 2005, à 10 heures, au Palais de la Paix, sous la présidence de M. le juge Guillaume, président