Public sitting held on Thursday 13 June 2002, at 3 p.m., at the Peace Palace, President Guillaume presiding

CR 2002/37
Cour internationale International Court
de Justice of Justice
LA HAYE THE HAGUE
ANNÉE 2002
Audience publique
tenue le jeudi 13 juin 2002, à 15 heures, au Palais de la Paix,
sous la présidence de M. Guillaume, président,
en l'affaire des Activités armées sur le territoire du Congo
(nouvelle requête : 2002)
(République démocratique du Congo c. Rwanda)
Demande en indication de mesures conservatoires
____________
COMPTE RENDU
____________
YEAR 2002
Public sitting
held on Thursday 13 June 2002, at 3 p.m., at the Peace Palace,
President Guillaume presiding,
in the case concerning Armed Activities on the Territory of the Congo
(New Application: 2002)
(Democratic Republic of the Congo v. Rwanda)
Request for the indication of provisional measures
_______________
VERBATIM RECORD
_______________
- 2 -
Présents : M. Guillaume, président
M. Shi, vice-président
MM. Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
Mme Higgins
MM. Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby, juges
MM. Dugard
Mavungu Mvumbi-di-Ngoma, juges ad hoc
M. Couvreur, greffier
¾¾¾¾¾¾
- 3 -
Present: President Guillaume
Vice-President Shi
Judges Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Judges ad hoc Dugard
Mavungu Mvumbi-di-Ngoma
Registrar Couvreur
¾¾¾¾¾¾
- 4 -
Le Gouvernement de la République démocratique du Congo est representé par :
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;
S. Exc. M. Alphonse Ntumba Luaba Lumu, ministre des droits humains,
comme coagent;
M. Lwamba Katansi, professeur à l’Université de Kinshasa,
M. Pierre Akele Adau, doyen de la faculté de droit de l’Université de Kinshasa et haut magistrat,
comme conseils;
M.Lukunda Vakala Mfumu, assistant à l’Université de Kinshasa, assistant du ministre des droits
humains,
M
eKabinda Ngoy, assistant au cabinet du ministre des droits humains et avocat au barreau de
Lubumbashi,
comme assistants des conseils.
Le Gouvernement de la République rwandaise est representé par :
S. Exc. M. Monsieur Gérard Gahima, procureur général de la République rwandaise,
comme agent;
S. Exc. Mme Christine Umutoni Nyinawumwani, ambassadeur extraordinaire et plénipotentiaire de
la République rwandaise auprès du Royaume des Pays-Bas,
comme coagent;
M. Christopher Greenwood, Q.C., professeur de droit international à London School of Economics,,
comme conseil et avocats.
- 5 -
The Government of the Democratic Republic of the Congo is represented by:
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;
H. E. Mr. Alphonse Ntumba Luaba Lumu, Minister for Human Rights,
as Co-Agent;
Mr. Lwamba Katansi, Professor at the University of Kinshasa,
Mr. Pierre Akele Adau, Dean of the Faculty of Law, University of Kinshasa and Senior Magistrate,
as Counsel;
Mr. Lukunda Vakala Mfumu, Assistant at the University of Kinshasa, Assistant to the Minister for
Human Rights,
Maître Kibinda Ngoy, Assistant to the Minister for Human Rights and member of the Lubumbashi
Bar,
as Assistants to Counsel.
The Government of the Rwandese Republic is represented by:
H.E. Mr. Gérard Gahima, Procurer-General of the Rwandese Republic,
as Agent,
H.E. Mrs. Christine Umutoni Nyinawumwani, Ambassador Extraordinary and Plenipotentiary of
the Rwandese Republic to the Kingdom of the Netherlands,
as Co-Agent,
Mr. Christopher Greenwood, Q.C., Professor of International Law at the London School of
Economics,
as Counsel and Advocates.
- 6 -
Le PRESIDENT : Veuillez vous asseoir. La séance est ouverte et je vais maintenant donner
la parole à M. Gérard Gahima, agent pour la République rwandaise. Monsieur l’agent, vous avez la
parole.
Mr. GAHIMA: Mr. President, Members of the Court. May it please the Court.
1. In this case I have the honour to appear before you as Agent of the Republic of Rwanda. I
am assisted by Her Excellency Ambassador Christine Umutoni, who is Ambassador in Brussels
and is also accredited to the Netherlands, and Professor Christopher Greenwood, as our counsel.
2. Mr. President, this Court has been subjected this morning to a long catalogue of
allegations against my country, allegations for which little or no evidence has been offered and for
which there is totally no foundation. In all their long tirades against Rwanda, representatives of the
Democratic Republic of the Congo have scarcely said a word about what the people of Rwanda
have suffered during the last decade, including the death of more than a million people, innocent
men, women and children in 1994. Yet there can be no doubt that the people of Rwanda, who have
been subjected to genocide and every conceivable variety of crime against humanity, have suffered
more than any other nation in the Great Lakes region ¾ indeed, more than any other nation in the
world ¾ from the horrors unleashed during the last ten years.
3. The origins of the current crisis in the Democratic Republic of the Congo go back to those
tragic events of 1994 when the leaders of Zaire, as the Democratic Republic of the Congo was then
known, offered sanctuary to members of the former government of Rwanda Hamwe and militia
from Rwanda according to the hamwe on their country’s territory and allowed these groups to
regroup and to re-arm in preparation for a return to Rwanda to complete the unfinished work of
genocide.
4. Successive governments of the Democratic Republic of the Congo continued to support to
these armed groups which are openly and unapologetically committed to the total destruction of
Rwanda and her people. As Professor Akele of the delegation of the Democratic Republic of the
Congo said this morning, Rwanda has since 1994 been waging a struggle against genocide.
5. It is, therefore, Mr. President, a matter of bitter irony that the Congo, whose contribution
has been to offer not only encouragement but also shelter, sanctuary, material, military and political
- 7 -
assistance to those who have perpetrated these terrible atrocities, should come here today playing
the part of the aggrieved innocent and pointing the finger of accusation at us.
6. But there is no need for me to enter into those accusations before you, for today’s
proceedings can be dealt with far more simply. This honourable Court has repeatedly stated that an
essential condition for the exercise of its powers under Article 41 of its Statute is that, first, the
Applicant must demonstrate that there is a prima facie basis for the jurisdiction of the Court and,
second, that the measures which it seeks are necessary to protect from irreparable harm rights
which could be the subject of that jurisdiction.
7. In the present case, the Democratic Republic of the Congo has wholly failed to meet either
of those two requirements. Rwanda therefore submits that the Court should reject the present
request for provisional measures.
8. Moreover, in view of the manifest absence of jurisdiction, Rwanda submits that the Court
should take this opportunity to remove from its List this Application, as the Court did in 1999 in
the cases concerning the Legality of Use of Force brought by the Federal Republic of Yugoslavia
against Spain and the United States of America. Our submissions to the Court in this regard will be
set out in greater detail by Professor Greenwood.
9. The absence of a prima facie basis for jurisdiction makes it unnecessary for me to engage
in any discussion of the allegations made against Rwanda by the Congo. I shall merely content
myself with the observation that, when the history of this period comes to be written, it will bear no
resemblance to what you have heard today from the representatives of the Democratic Republic of
the Congo.
10. Several examples can be used to illustrate this point. First, the Congolese Application
and the speeches this morning ignored or misrepresented developments relating to the Lusaka
peace process. The fact is that, since at least January 2001, there has been a peace process
recognized by the international community generally and the United Nations and the Organisation
of African Unity in particular as the only acceptable framework within which a resolution to the
conflict in the Congo can be found.
11. The United Nations Security Council, the organ which is entrusted with the maintenance
of international peace and security, and of the United Nations Charter, has been continuously seised
- 8 -
of the situation in the DRC since August 1998. It has endorsed the Lusaka peace process as the
only framework for the restoration of peace to the Democratic Republic of the Congo and the entire
membership of the Security Council has visited the Great Lakes region several times to promote
the successful implementation of the Lusaka peace agreement.
12. I may add, too, that in the framework of the Lusaka peace process, there has been in
force a ceasefire in place for more than two years now. Rwanda has also played a full part in this
peace process, which has involved regular meetings between the Governments of the Congo and
Rwanda and other interested parties. These meetings have been held at official, ministerial and
even at Head of State level. There have been, to my knowledge, no fewer than 15 meetings of the
political committee composed of Ministers and even Heads of State in the last two years.
13. Thus Congo has had every opportunity to raise, in direct negotiations with Rwanda, the
issues which are addressed in its Application but it has not done so.
14. Mr. President, Rwanda takes very seriously its obligations under the treaties to which it
is a party. If Congo had raised allegations with us, for example, of the ill-treatment of women and
invoked the provisions of Convention for the Elimination of All Forms of Discrimination Against
Women (CEDAW), Rwanda would have treated them with the utmost seriousness.
15. Similarly, if Congo had requested arbitration under any of the treaties it now cites of a
dispute relating to the interpretation or application of that treaty, we would have endeavoured to
organize an arbitration. The fact is, we have never been asked by the Congo to negotiate or to go to
arbitration on any of the treaties that the Congo is relying on today.
16. Secondly, Mr. President, despite the Congo’s references to the United Nations Security
Council, it has failed wholly to convey the true nature and effect of the Council’s actions and
resolutions in matters relating to the conflict in the Democratic Republic of the Congo. A glance at
the most recent pronouncements of the Security Council ¾ and on a request for provisional
measures said to be of the utmost urgency, it is the most recent pronouncements which are the most
relevant ¾ the Security Council has been far from blaming Rwanda for the Congo’s ills, as the
Congo has sought to do today. For example, resolution 1399 of 19 March 2002 condemns a
Congolese faction for the resumption of the fighting and calls upon Rwanda to use its influence
with that faction to persuade it to implement the provisions of that resolution. It also calls on the
- 9 -
Government of the Democratic Republic of the Congo to resume talks with other Congolese
parties.
17. I must just add, Mr. President, that a lot has been said about the situation in Kinshasa
today, and I feel that it is appropriate I should put the record straight. There are no Rwandan troops
in the Democratic Republic of the Congo in Kisangani today. Indeed, there have not been any for
three years. The Presidential Statement, issued on 5 June 2002 by the President of the Security
Council, far from blaming Rwanda, calls on Rwanda to exert influence on the RDC ¾ which
shows that the Security Council sees Rwanda as a partner in the search for peace in the Congo.
18. Before I invite the Court to call upon Professor Greenwood, our counsel, there is one
issue of a procedural character which I must refer to. Members of the Court will be aware that the
present Application is the second which the Democratic Republic of the Congo has brought against
my country. In 1999, in proceedings which were entered on the General List as case No. 117, the
Congo made an earlier Application. The allegations which that Application contained were
substantially the same as those before you today. Indeed, Mr. President, I would invite you and the
other Members of the Court to compare, at your leisure, the present Application and its 1999
predecessor.
19. The grounds of jurisdiction advanced in 1999 were plainly deficient ¾ the Convention
against Torture, to which Rwanda is not even a party today, the Montreal Convention on the
Suppression of Unlawful Acts against the Safety of Civil Aviation, which was manifestly
inapplicable, and an invitation to Rwanda to voluntarily submit to the jurisdiction of this Court,
which Rwanda declined, as it had every right to do.
20. Rwanda would have been entirely within its rights, Mr. President, to have stayed its hand
in that case and made its preliminary objections only after the Congo had submitted its Memorial.
But that would have put this honourable Court to the inconvenience of having the case on its List
for an unnecessarily long period of time and would have caused another developing country to
incur considerable expense. Instead, we made it clear at the outset that we would raise objections
to the jurisdiction of the Court and it was Rwanda which set out its arguments in a Memorial in
April 2000, in which we showed the Court that neither of the treaties on which the Congo sought to
rely could found the jurisdiction of the Court. Congo’s reaction, after a delay of nine months, was
- 10 -
to discontinue that case, while announcing that it “reserved the right to invoke subsequently new
grounds of jurisdiction”.
21. The Democratic Republic of the Congo has suggested that this is what it has done in this
present Application, but the reality is quite otherwise. The grounds of jurisdiction offered up by
Democratic Republic of the Congo in this new Application include, once again, the Torture
Convention and the Montreal Convention, and this despite the fact that Rwanda demonstrated in
the last case that neither treaty could provide a basis for the jurisdiction of the Court ¾ something
which the Congo’s decision to discontinue the first case showed that the Congo accepted. Yet the
Congo has not even attempted to respond to Rwanda’s arguments on these issues.
22. To these treaties which are plainly inapplicable, the Democratic Republic of the Congo
has added a further five Conventions, all of a special character and none offering a basis for
jurisdiction over a case which is essentially the same as the original case of 1999.
23. Mr. President, the reality is that the references made this time to treaties like the
WHO Constitution and the Convention on the Elimination of All Forms of Racial Discrimination
are no more than window dressing. What the Congo is seeking to do is to bring before you the
same case as in 1999 and the jurisdictional basis for that case is now no stronger now than it was
then.
24. In our submission, that is an abuse of the process of the Court. A State should not be
allowed to play fast and loose with this honourable Court in this way, especially when it invokes
the provisional measures jurisdiction to secure an expedited hearing when the Court is already fully
occupied with another case.
25. Accordingly, the Republic of Rwanda respectfully requests that the Court not only reject
the request for provisional measures of protection but also remove the instant case from its List.
26. Mr. President, may I now ask you to call upon my colleague, Professor Greenwood.
Le PRESIDENT : Je vous remercie beaucoup, Monsieur l’agent. Je passe maintenant la
parole au professeur Greenwood.
- 11 -
Mr. GREENWOOD: Mr. President, Members of the Court. May it please the Court.
I. Introduction
1. May I begin by saying that it is an honour for me to appear before you again, this time on
behalf of Rwanda. As the learned Agent for Rwanda has explained, I shall develop our two
submissions: first, that Congo’s request for provisional measures should be dismissed and,
secondly, that the Court should order that the case be removed from its List.
2. For the convenience of the Court, Rwanda has provided each Member of the Court with a
small folder containing the relevant treaty provisions on which the Congo relies in its Application
and its Request, together with a handful of other documents, such as the texts of the Rwandan
reservations to two of those treaties, and the two Security Council documents cited by Mr. Gahima
in his speech this afternoon. I must apologize to Members of the Court that I fear some of the files
suffered rather in transit; they were not all in a terribly good state when we unpacked them. All of
the documents in question are documents which are in the public domain and we have supplied
copies of the folder to the representatives of the Congo. I do not propose to follow what would be
the practice in an English court and invite Members of the Court to look at particular documents
during the hearing, but the written version of my speech will contain the references to the tab
numbers for all the documents of which I make mention during my speech.
II. The Congolese Application and Request for provisional measures
3. Mr. President, at the outset, it is useful for us to recall exactly what relief Congo is seeking
in these proceedings. The Application was read to the Court by the Registrar this morning. He
also read the salient passages of the Request for provisional measures of protection.
4. But I would just like to summarize for the Court, some of the features of the interim
measures, the provisional measures which the Congo seeks, because they shed considerable light
on what the Congo thinks this case is about. The Congo asks the Court (and I paraphrase for the
sake of brevity):
¾ First to order that Rwanda, its agents and allies immediately put an end to and renounce
aggression, occupation of Congolese territory, violations of the sovereignty, territorial integrity
- 12 -
and independence of the Congo, all use of force against the Congo, the siege of Congolese
cities and towns and various manifestations of the use of force.
¾ Secondly, you are asked to recognize that the Congo has what it describes as “an inalienable
and sovereign right” to demand that its territorial integrity is guaranteed, to demand of the
United Nations that Rwandese troops quit its territory, to enjoy its natural resources and to
exercise its right of self-defence under Article 51 of the Charter.
¾ Thirdly, you are asked to adjudge and declare that Rwanda has violated the Torture
Convention, the Charter of the United Nations, the Charter of the Organization of African
Unity, the International Bill of Rights and a panoply of instruments of international human
rights and humanitarian law; to adjudge and declare that Rwanda must cease its use of force,
that it must pay compensation to the Congo, to impose an embargo on the supply of certain
goods to Rwanda and on the purchase of other items from Rwanda and you are asked to
adjudge and declare that a peacekeeping force ¾ une force d’interposition et d’imposition de
la paix ¾ should be deployed along the Congo-Rwanda frontier.
5. Mr. President, the breadth of this Request is truly astonishing. The Court is asked to give
what would amount to a final judgment on the merits under the guise of provisional measures; it is
asked to impose provisional measures directed to States which are not parties to these proceedings,
and to international organizations which cannot be party to these proceedings. The Court is invited
to usurp the authority of other institutions by creating its own international peacekeeping force.
These are measures, Mr. President, which manifestly fall outside any jurisdiction which the Court
might possess in any case between two States. Yet they are, nevertheless, a useful reminder of
what the Congo considers the present case to be is about. And I would invite Members of the
Court, as you browse through that folder of the treaties on which the Congo relies as the basis of
the Court’s jurisdiction, just to compare from time to time, the provisions of each treaty with the
release which the Congo is asking you to grant and see if it is possible to find a way in which an
embargo on the purchase of diamonds, the creation of a peacekeeping force or an award of
damages for violations of humanitarian law could be fitted within the framework of the WHO or
Unesco constitutions, for example.
- 13 -
III. The criteria for the indication of provisional measures
6. Mr. President, if I turn to the criteria for the indication of provisional measures, those
requirements are well known and are not in dispute between the Parties. The Court has repeatedly
made clear that it has the power to indicate provisional measures if, but only if, two conditions are
satisfied.
7. First, although the Court need not finally satisfy itself that it has jurisdiction on the merits,
it may not indicate provisional measures “unless the provisions invoked by the Applicant appear,
prima facie, to afford a basis on which the jurisdiction of the Court might be founded” (Armed
Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Provisional Measures, Order of 1 July 2000, para. 33).
8. Secondly, since the power to indicate provisional measures has:
“as its object to preserve the respective rights of the parties pending the decision of the
Court, and presupposes that irreparable prejudice shall not be caused to rights which
are the subject of dispute in judicial proceedings . . . the Court must be concerned to
preserve by such measures the rights which may subsequently be adjudged by the
Court to belong either to the Applicant or to the Respondent . . . and such measures are
justified only if there is urgency” (Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of
1 July 2000, para. 39).
9. Mr. President, those two requirements, although separate, are closely related as the
Court’s jurisprudence is made clear. For the extent of the jurisdiction which can be founded upon
the provisions invoked by an applicant will determine which of the rights that the applicant asserts
(if any) can be the subject of a decision by the Court and therefore which rights are capable of
being protected by means of provisional measures. In short, it is not sufficient for an applicant to
show that there may exist some basis for jurisdiction in the abstract: the applicant must show that
the provisions which it offers as a basis for jurisdiction are capable of affording the Court
jurisdiction over the actual dispute which it seeks to put before the Court and in respect of the very
rights which it asks the Court to protect.
10. Mr. President, in our submission, both in its Application and in its speeches this morning,
the Congo has failed to discharge that burden. None of the jurisdictional provisions on which it has
relied come anywhere near affording even a prima facie basis for the jurisdiction of the Court as
between the Congo and Rwanda. Moreover, even those instruments which might ¾ in other
- 14 -
circumstances ¾ offer some element of jurisdiction, do not afford a basis for jurisdiction in respect
of the rights which the Congo seeks to assert here today. I shall develop each of these points in
turn.
11. But let me just say a brief word first about what might be described as one of the
leitmotifs of this morning’s presentation. We heard time and again from representatives of the
Congo that the Congo has great respect for the jurisdiction of the Court and that is why it has
offered to bring all manner of disputes before you. And sometimes expressly, sometimes by
implication, it has suggested that of course, by taking a jurisdictional objection, Rwanda is showing
that it lacks that respect for the Court. Mr. President, Members of the Court will know full well
that this is a characteristic trick which any State with a weak jurisdictional hand tends to put in
front of you. Rwanda has the utmost respect for the Court. We respect amongst other things, the
jurisdiction of that Court and our submissions to you today are founded upon that jurisdiction, and
not in any sense intended to show any form of disrespect ¾ quite the opposite.
IV. The absence of a basis for any jurisdiction
12. Congo advances, in its Application and Request, eight different bases for the jurisdiction
of the Court. This morning it may ¾ I stress may ¾ have suggested a ninth. The eight, which are
actually in the Request and the Application, are as follows:
(1) the Convention against Torture, 1984;
(2) the Genocide Convention, 1948;
(3) the Convention on the Elimination of all Forms of Racial Discrimination, 1965;
(4) the Constitution of Unesco;
(5) the Convention on the Elimination of All Forms of Discrimination against Women, 1979;
(6) the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation, 1971;
(7) the Statute of the World Health Organization; and lastly
(8) rules of jus cogens, imposing obligations erga omnes, which are said in themselves to found
the jurisdiction of the Court.
- 15 -
Now this morning, in addition to referring to those eight grounds, one of the representatives
of the Congo referred to the Convention on Privileges and Immunities of the United Nations. In
my submission it is too late for the Congo to add to that, as a possible basis for the jurisdiction of
the Court and I was not entirely clear that its representatives were seeking to do so. Doubtless they
will clarify that tomorrow. But in so far as they are seeking to rely upon it, we will say that it has
no bearing whatever on the application before you, it cannot form a basis for jurisdiction on which
an application for interim measures can be founded.
Let me now take each of the jurisdictional grounds in turn.
(1) Jus cogens
13. It is perhaps simplest, Mr. President, if I begin with the rules of jus cogens. The Congo’s
reliance on this concept is, in our submission, wholly misplaced. It ignores the principle ¾ which
has been consistently emphasized in the Court’s case law ¾ that the jurisdiction of the Court is
based exclusively upon consent. That principle was emphasized most recently in the cases
concerning Legality of Use of Force, cases which themselves involved allegations of violations of
the rules of jus cogens. The Court there stated that:
“the Court can . . . exercise jurisdiction only between States parties to a dispute who
not only have access to the Court but also have accepted the jurisdiction of the Court,
either in general form or for the individual dispute concerned” (Legality of Use of
Force (Yugoslavia v. Belgium), I.C.J. Reports 1999 (I), p. 132, para. 20).
14. One consequence of that principle, as the Court made clear in the same cases, is that:
“Whereas there is a fundamental distinction between the question of the
acceptance by a State of the Court’s jurisdiction and the compatibility of particular
acts with international law; the former requires consent; the latter question can only
be reached when the Court deals with the merits after having established its
jurisdiction and having heard full legal arguments by both parties.” (P. 140, para. 47.)
The fact that the rule which a State is accused of having violated has the status of jus cogens does
not alter that distinction one iota. In particular, an allegation of a violation of jus cogens does not,
and cannot act as a substitute for the consent of the respondent State, so as to create jurisdiction
where none would otherwise exist.
15. Nor is the Court given jurisdiction over a State because the norm which that State is
accused of violating is one which creates obligations erga omnes. As the Court stated in the East
- 16 -
Timor decision, “the erga omnes character of a norm and the rule of consent to jurisdiction are two
different things” (case concerning East Timor (Portugal v. Australia), I.C.J. Reports 1995, p. 102,
para. 29).
16. In an attempt to circumvent these very clear statements of principle, Congo refers in its
Application ¾ although we did not hear anything about it this morning ¾ to Article 66 of the
Vienna Convention on the Law of Treaties (1969), which Members of the Court will find at tab 1
of the folder of documents. That provision has absolutely no bearing on this case whatever.
Contrary to what the Congolese Application and Request suggest, Article 66 does not provide for
any dispute regarding contravention of a rule of jus cogens to be referred to the Court. On the
contrary, it is concerned with a very specific kind of dispute regarding one particular effect of
norms of jus cogens.
17. Article 66 is part and parcel of the machinery for the settlement of disputes regarding the
interpretation and application of the Vienna Convention on the Law of Treaties. It confers
jurisdiction only in respect of disputes regarding the validity of a treaty which is said to contravene
a rule of jus cogens. There is no such dispute here and Article 66 of the Vienna Convention can no
more supply the basis for jurisdiction in the present case than can the substantive norms of jus
cogens to which the Congo has made so many references this morning.
(2) The treaty provisions
18. Let us turn, Mr. President, to the treaty provisions relied upon by the Congo. Each of the
treaties in question is of a specialized character, dealing with subject-matter of a specific ¾ and, in
general, closely defined ¾ nature. The disputes clauses in those treaties ¾ in so far as they confer
jurisdiction at all ¾ do so only in respect of disputes directly related to the subject-matter of each
treaty and then only to the extent that the dispute is so related. None of these treaties is concerned
with the main elements of the case which Congo seeks to put before the Court, for as Congo
candidly admits in its Request for provisional measures, after listing the treaties on which it relies:
“La République Démocratique du Congo considère que toutes ces atteintes
trouvent leur cause fondamentale dans la persistance et l’aggravation de la violation
de l’article 2 paras 3 et 4 de la Charte de l’ONU et de l’article 3 de la Charte de
l’OUA; autrement dit du non-respect de sa souveraineté; de son intégrité territoriale
et de son indépendance.” (Request, p. 7.)
- 17 -
That is not, Mr. President, what the treaties are about and it is, we submit, plain that none of them
could ¾ on any analysis ¾ furnish a basis for the jurisdiction of the Court to indicate the sweeping
measures which the Congo is requesting. Let me take them one by one.
(a) The Convention against Torture
19. We can dispose quite quickly of the Convention against Torture because Rwanda is not a
party to that Convention. It cannot, therefore, by any definition, be a basis for the jurisdiction of
the Court. If Members of the Court turn later to the table, at tab 2 of the folder of documents, that
table shows quite clearly that Rwanda has never become a party to this Convention. And I must
confess, Mr. President, to a measure of surprise that my learned friends, the counsel for the Congo
insisted on relying on this treaty in their present Application because they have gone to some length
to discover which other treaties Rwanda was a party to and we had in fact pointed out in our
Memorial on Preliminary Objections in their earlier Application that Rwanda has never become a
party to the Convention Against Torture.
(b) The Genocide Convention
20. Then we can turn to the Genocide Convention [tab 3]. Now that is a treaty which is
binding upon Rwanda and Article IX of that Convention contains provision for the reference of
disputes to the Court. However, on acceding to the Convention in 1975, Rwanda made the
following reservation [the text of which appears at tab 5]: “the Rwandese Republic does not
consider itself bound by Article IX of the Convention”.
21. Now Rwanda was not at all alone in making a reservation of that kind: Spain had a
reservation in effectively identical language. The United States of America, a reservation which,
though the language differed, was identical in its effect. The Court considered those reservations
by Spain and the United States of America in the cases concerning Legality of Use of Force. And
on the basis of those reservations, the Court determined, by a very large majority, that Article IX of
the Genocide Convention “manifestly does not constitute a basis of jurisdiction in the present case,
even prima facie” (Legality of Use of Force (Yugoslavia v. Spain), I.C.J. Reports 1999 (II), p. 772,
para. 33.) And it removed both of the two cases from the Court’s List.
- 18 -
22. Our submission, Mr. President, is that there is no way of distinguishing between the
reservation of Rwanda and the reservations of Spain and the United States. Yet my learned friends
this morning suggested a number of reasons why the Rwandese reservation was ineffective and as a
matter of courtesy if nothing more, I shall reply to them.
1. First of all they argued that the Genocide Convention states norms of jus cogens. Well, so it
does. Rwanda has never denied that, but it is the substantive provisions prohibiting genocide
which have the status of jus cogens, not the jurisdictional clause in Article IX. This
submission, like the general jus cogens submission I spoke about a few minutes ago, overlooks
the fundamental distinction between the substantive law which the Court applies and its
jurisdiction to apply that law to the facts of a particular case.
2. The same is true of the second argument, that genocide is a norm which creates obligations
erga omnes. Well again, so it does. But that doesn’t alter the jurisdictional position as the
East Timor case made clear.
3. My learned friend suggested that the Democratic Republic of the Congo objects to the
Rwandese reservation. Well, I spent lunchtime checking the website of the United Nations
High Commissioner for Human Rights, which contains a list, not only of all reservations to the
Genocide Convention, but of all statements on file reacting to those reservations. The Congo,
whether it called itself the Congo, the Democratic Republic of the Congo, or Zaïre, said
nothing whatever about the Rwandese reservation at the time that it was made, nor indeed did
it respond to the reservations in identical terms by any other State. And it is too late, Mr.
President, for the representatives of the Congo to come along here and say now, 27 years later,
that they objected to that reservation.
4. Nor is the reference to the Advisory Opinion of this Court in the reservations to the Genocide
Convention case of any relevance. That Advisory Opinion in no way suggests that Rwanda
cannot rely today on its reservation to Article IX in the same way as Spain and the United
States of America relied on theirs in the cases concerning Legality of Use of Force.
5. And, lastly, Mr. President, we had a quite extraordinary argument this morning that, because
Rwanda had asked the Security Council to create an ad hoc criminal tribunal to prosecute
individuals charged with genocide, therefore it had somehow waived, or become estopped
- 19 -
from any reliance upon its reservation to the Genocide Convention. With the greatest of
respect, that is nonsense. The criminal jurisdiction of a tribunal created by the Security
Council and deriving its authority from an exercise of the Council’s powers under Chapter VII
of the Charter to try individuals for the crime of genocide has nothing whatever to do with the
authority of the Court to exercise jurisdiction in inter-State disputes, which can be derived
only from Article IX: and Article IX, subject as the Court has itself said, to reservations.
23. I would just in passing make one further point about the Genocide Convention, and that
is that we do not accept for a minute the distinction which my learned friends sought to draw this
morning between the factual basis of this case and the factual bases of the cases concerning
Legality of Use of Force. We do not accept that there is a distinction and we maintain that what the
Congo is seeking to do here is exactly the same as what Yugoslavia sought to do in those cases,
namely, to use the Genocide Convention as a way of inviting the Court to enforce the entire
panoply of the laws of war and the law of the Charter. And that is something which is plainly not
permitted.
(c) The Convention for the Elimination of All Forms of Racial Discrimination
24. Let me turn next to the Convention on racial discrimination. The position here is exactly
the same as the position under the Genocide Convention. Article 22 of the Convention on racial
discrimination provides for reference to the Court of disputes, but when Rwanda acceded to the
Convention in 1975 it did so subject to a reservation which excluded Article 22 in its entirety. And
the text of these reservations to both Conventions are at tab 5 of the folder of documents. The
Congo may be objecting this morning to that reservation made by Rwanda, but it certainly did not
object in 1975. That Convention also cannot furnish a basis for jurisdiction in respect of Rwanda
in any dispute whatever.
(d) The Constitution of Unesco
25. Then the Congo relies upon the Constitution of Unesco [tab 6] ¾ and I am indebted to
the Congo in this respect, because it caused me to reread a treaty which I had not looked at for
some little while. Both States are indeed parties to it and paragraph 2 of Article XV of that
Constitution, under the title “Interpretation” contains the following provision:
- 20 -
“Any question or dispute concerning the interpretation of this Constitution shall
be referred for determination to the International Court of Justice or to an arbitral
tribunal, as the General Conference may determine under its Rules of Procedure.”
26. The Court will have noted that ¾ in contrast to the dispute clauses in most of the other
treaties relied on today ¾ this provision refers only to disputes concerning the interpretation, not
the application, of the Constitution. The Congo has not given the merest hint to the Court of any
dispute about the interpretation of provisions of the Unesco Constitution.
27. Moreover, Article XIV of that Constitution provides for reference to the Court only “as
the General Conference may determine under its Rules of Procedure”. It is therefore necessary to
refer to those Rules of Procedure [tab 7]. Rule 38, which is entitled “Interpretation of the
Constitution” provides, in paragraph 3, that the Legal Committee:
“may decide by a simple majority to recommend to the General Conference that any
question concerning the interpretation of the Constitution be referred to the
International Court of Justice for an advisory opinion”.
Paragraph 4 of the same Rule then goes on to provide that:
“In cases where the Organization is party to a dispute, the Legal Committee
may decide, by a simple majority, to recommend to the General Conference that the
case be submitted for final decision to an arbitral tribunal, arrangements for which
shall be made by the Executive Board.”
28. So as is expressly envisaged by the Constitution, the Rules make provision for the
manner in which questions and disputes concerning the interpretation of the Constitution may be
referred to the Court. And there is no question of the procedures laid down in the Rules having
been followed in this case. Article XIV (2) of the Constitution affords no other basis for the
jurisdiction of the Court and cannot, therefore, furnish a basis ¾ even prima facie ¾ for the
jurisdiction of the Court in the present case.
(e) The Convention on the Elimination of All Forms of Discrimination against
Women
29. Next we have the Convention on the Elimination of All Forms of Discrimination against
Women [tab 8]. Now the disputes clause there, Article 29 (1), was quoted by the representative of
the Congo this morning: but I will ask the Court’s indulgence to allow me to quote it again,
because its wording is very important and it was perhaps rather too briskly treated by my learned
friends. What Article 29 (1) says is:
- 21 -
“Any dispute between two or more States Parties concerning the interpretation
or application of the present Convention which 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.”
30. Mr. President, this provision clearly lays down a number of preconditions which must be
satisfied before the jurisdiction of the Court can be founded, even on a prima facie basis:
(1) there must be a dispute concerning the interpretation or application of the Convention;
(2) it must have proved impossible to settle that dispute by negotiation;
(3) there must have been a request for arbitration; and
(4) it must have proved impossible to organize an arbitration within a period of six months.
31. Now those conditions are not formalities. Article 29 (1) does not make the Court the
primary forum for the resolution of the disputes to which it applies ¾ that forum is arbitration: and
even arbitration is to be invoked only where a dispute has not been settled by negotiation. The role
of the Court is not as a tribunal of first instance, but as a guarantor in the event that the provisions
for negotiation and arbitration fail, that is to say if the parties to the dispute are unable to resolve
their differences by negotiation and cannot agree on the organization of the arbitration. The failure
to settle the dispute by negotiation and the failure to agree upon the organization of the arbitration
are conditions precedent to the creation of jurisdiction in the Court. It is therefore incumbent upon
any applicant State wishing to seise the Court under Article 29 to demonstrate that the conditions
laid down in that provision have been met.
32. Mr. President, none of those conditions has been satisfied in the present case. With
regard to the first requirement ¾ that there must be a dispute between the Congo and Rwanda
regarding the interpretation or application of this Convention ¾, the Court has repeatedly made
clear that the existence of a dispute is an objective question and does not depend on the mere
assertion of the applicant. In one oft-quoted passage, the Court has said:
“it is not sufficient for one party to a contentious case to assert that a dispute exists
with the other party. A mere assertion 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.” (South West Africa Cases, Preliminary Objections, Judgment of
21 December 1962, I.C.J. Reports 1962, p. 328.)
- 22 -
33. In the present case, there has been no claim by the Congo prior to the filing of the
Application. There simply hasn’t been anything which Rwanda could positively have opposed. At
no time did the Congo advance any claim that Rwanda is in breach of the Convention or suggest
that there was a dispute regarding the interpretation of any provision of this Convention. Rwanda
quite simply has no idea which provisions of the Convention the Congo considers to be in issue.
Indeed, Mr. President, we beg leave to doubt whether the Congo has any idea either. If it does, it is
not an idea which it has chosen to share with the Court since, apart from a very vague reference to
the general language of Article 1 and a bewildering reference this morning to the Preamble to the
Treaty, which appeared to suggest that virtually every obligation known to international law fell
within its scope, the Congo has made no reference to any of the provisions of the Convention on
the Elimination of All Forms of Discrimination Against Women.
34. But even if there does exist today a dispute between the two countries regarding the
interpretation or application of any of the provisions of the Convention, it is manifest that the
Congo has failed to comply with the essential requirements of Article 29, paragraph 1. There has
been no attempt whatever to settle that dispute by negotiation. On the contrary, the Congo has at
no time even raised the question of this Convention with Rwanda.
35. Nor has the Congo proposed or attempted to negotiate the organization of an arbitration
as required by Article 29, paragraph 1. It is, of course, well understood, Mr. President, that an
arbitration is a formal procedure, initiated by a request. In the present case, there has been no
request, nor has there been any other attempt to take any of the steps which are required to organize
an arbitration.
36. In its Application, and in its counsel’s speeches this morning, the Congo seeks to brush
these requirements aside as technicalities which the Court should not waste its time on. It suggests
that the absence of normal diplomatic and consular relations means that any proposal for
negotiation or arbitration would have been futile ¾ more or less an admission that there hasn’t
been any such request. Mr. President, there is no basis whatever for those assertions. These are not
mere technicalities, they go to the heart of the way in which a whole series of disputes clauses in
major multilateral conventions have been drafted for years, setting up the jurisdiction of the Court
as, in cricketing terms, a “long stop”. Secondly, as for it being futile to make any request for
- 23 -
arbitration or to seek a negotiated settlement, it is simply not the case. While it is true that normal
diplomatic relations have been suspended, there are regular and frequent meetings between
representatives of the two countries at all levels — ministerial, official, even Head of State — as
part of the Lusaka peace process. As Mr. Gahima explained this afternoon, there have been
numerous such meetings both this year and last. It would have been perfectly possible for the
Congo to have raised any dispute regarding the interpretation or application of the Convention with
Rwandese representatives at one of these meetings, but it hasn’t done so. Nor has it made any
proposal for arbitration under this Convention. That is the Congo’s choice, but it cannot now
complain of the consequences of that choice.
37. The case is therefore quite different, we submit, from the Lockerbie case between Libya
and the United States of America which this Court considered a few years ago (Questions of
Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriya v. United States of America), I.C.J. Reports 1997). In that
case, the Court noted that Libya ¾ whose contacts with the United States of America at the
relevant time were a good deal more tenuous and infrequent than the contacts that the Congo has
with Rwanda ¾ had written to the Government of the United States proposing arbitration and
invoking provisions of the Montreal Convention. And the Montreal Convention provisions in
question, you will see in a moment, are substantially the same as Article 29 (1) of the Convention
on the Elimination of All Forms of Discrimination Against Women. The proposal for arbitration
had received no answer and it was on that basis, Mr. President, that this Court rejected the
argument put forward by the United States that the conditions for seising the Court had not been
met in the Lockerbie case. But those considerations simply do not exist on the facts of the present
case.
(f) The Montreal Convention
38. Let me turn to the Montreal Convention [tab 9]. Now that Convention, of course, was
also invoked not only this time round, but in the 1999 Application by the Congo. Article 14,
paragraph 1, of the Convention, which I will not read, contains the same preconditions for the
jurisdiction of the Court as those in the Convention on the Elimination of All Forms of
- 24 -
Discrimination Against Women. And once again, the Congo has made no attempt to satisfy those
conditions although, let us be clear, it has had quite enough opportunity to do so, and quite enough
time.
39. In its earlier Application — and the allegation is repeated this time — the Congo referred
to the alleged shooting down of a civil aircraft in October 1998. Rwanda made detailed arguments
regarding that allegation — and it is the only allegation that relates to Montreal in the entire history
of both of these cases — in its Memorial of 2000 setting out preliminary objections. Rwanda
pointed out there that the allegation was insufficiently particularized; that exactly the same
allegation had been made against Uganda and Burundi in separate proceedings, without any
indication whatever of the basis on which three different States were accused of one and the same
action. Rwanda demonstrated that there had been no attempt whatever by the Congo to define the
nature of the dispute, and no attempt to seek a resolution by negotiation or arbitration in clear
contravention of the language of Article 14. I shall not take up the Court’s time by reciting the
arguments further but I do invite Members of the Court to read the Memorial which Rwanda
submitted in the earlier Congolese Application.
40. Mr. President, that was more than two years ago. The Congo’s response was to request
an extension of time in which to respond to a Memorial which was only 20 pages long. Having
obtained its extension of time, and let nine months go by, it then decided to abandon its action in
January 2001, without making any comment whatever on the Montreal Convention. And we
submit that it is the clearest case of an abuse of process ¾ and that is not an allegation that I would
make lightly ¾ the clearest case of an abuse for the Congo simply to come back to the Court today,
in 2002, take advantage of the priority given to applications for provisional measures of protection,
and simply repeat old allegations of four years ago without any attempt to meet jurisdictional
arguments which itself it recognized had caused it to discontinue its earlier Application in January
of last year.
41. In any event, Mr. President, there can be no doubt that the present Congolese reliance on
Montreal suffers from exactly the same weaknesses as it did in 1999. The Congo has never sought
to identify a proper dispute, never attempted to negotiate, never sought arbitration. Article 14 of
the Montreal Convention, we submit, cannot furnish any basis for the jurisdiction of this Court.
- 25 -
(g) The Constitution of the WHO
42. That leaves Article 75 of the Constitution of the World Health Organization (WHO)
[tab 10]. That Article, which was not, as far as I can recall, quoted this morning, provides:
“Any question or dispute concerning the interpretation or application of this
Constitution which is not settled by negotiation or by the Health Assembly shall be
referred to the International Court of Justice in conformity with the Statute of the
Court, unless the parties concerned agree on another mode of settlement.”
43. Once again, Mr. President, there has been no hint before the Application was filed of any
dispute between the two States, concerning the interpretation or application of the WHO
Constitution. The Congo has made no attempt to identify which provisions of the Constitution it
considers to be in issue. Nor has it made any effort to satisfy the procedural condition for seising
the Court ¾ which is as important under this provision as under the provisions of the Montreal and
Discrimination against Women Conventions. Article 75 confers jurisdiction on the Court if ¾ and
only if ¾ the dispute in question has not been settled by negotiation or by the Health Assembly. It
cannot be open to an applicant to say that a dispute has not been settled by either of these means
when it has made no effort to invoke them. It is clearly a requirement of Article 75 that, before
attempting to seise the Court, a State should first seek to resolve the dispute by negotiation or by
the processes of the Health Assembly. The Congo has made no attempt to do so. That being the
case, Article 75 cannot afford a basis for jurisdiction in the present case.
44. Mr. President, let me just say a word about the Convention on the Privileges and
Immunities of the United Nations which was mentioned this morning: mentioned for the first time,
this morning. As I said I am still unclear as to whether it is being put forward as a basis for
jurisdiction, but in so far as it is, I would make two submissions about it.
45. The first is that as the Court stressed in the Legality of Use of Force cases brought by
Yugoslavia against Belgium and the Netherlands, the oral hearings are too late for a State to invoke
an entirely fresh ground of jurisdiction as the basis on which it seeks to seise the Court in a request
for provisional measures of protection. Admissibly, those authorities were distinguished by the
Court in the Arrest Warrant case, but that concerned declarations under the optional clause of the
Court’s Statute, which fall into a somewhat special category not least because their existence would
be very well known to all concerned.
- 26 -
46. But secondly, the failure on the part of the Congo to identify any dispute whatever
between the Democratic Republic of the Congo and Rwanda about the Privileges and Immunities
Convention prior to coming along this morning, and indeed even this morning, they did not set out
what dispute there was or what dispute they claimed there was between the two States. That alone
must disqualify reliance upon that Convention today. There may perhaps be a dispute ¾ and the
Security Council documents Mr. Gahima referred to would support this ¾ between the United
Nations and the RDC-Goma, the rebel faction within the Congo, about the treatment of personnel
in the MONUC United Nations force. But that is not a dispute which involves either of the two
Parties here before you today. Congo has no locus standi to bring an action in respect of the
treatment, by a rebel faction of its own countrymen, of members of the United Nations mission.
And Rwanda cannot be held accountable in circumstances of that kind. Again, Mr. President, we
say that the Treaty forms no basis for the jurisdiction of the Court. It is noticeable that there isn’t
even an allegation that it is Rwanda as opposed to the RDC-Goma that was responsible for the
violations referred to this morning.
V. The jurisdictional provisions relied on by Congo do not apply to the relief sought
47. Now that would be sufficient to dispose of the case, Mr. President. None of the
jurisdictional grounds relied on provides even prima facie a basis for the Court’s jurisdiction. But
for completeness, I would add that the Request fails on another ground also.
48. The jurisprudence of the Court makes clear that provisional measures may be granted
only for the purpose of preserving rights which might form the subject-matter of a decision of the
Court on the merits. As the Court made clear in its second 1993 Order in the Bosnia genocide case,
the measures which can be ordered on a provisional measures request are confined to those needed
to protect rights which might form the subject matter of a judgment under the treaty or treaties
which the Court determines afford a prima facie basis for its jurisdiction (Application of the
Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures,
Order of 13 September 1993, I.C.J. Reports 1993, p. 325, paras. 35-36).
49. In the present case, the only treaties which are in force for both the Congo and Rwanda
and which contain a clause to which there is no relevant reservation providing for jurisdiction are
- 27 -
the Montreal Convention, the Convention on Discrimination against Women and the WHO
Constitution. Unesco, I think, one can set to one side for the separate reason that it doesn’t cover
this type of dispute in any event. Even if, contrary to what I have already submitted, the conditions
precedent to jurisdiction were met in respect of any or all of those three treaties, the jurisdiction
which they would provide would be restricted to the subject-matter of those treaties. The
provisional measures sought by Congo manifestly fall outside the scope of that subject-matter. In
essence, Mr. President, the relief claimed by Congo makes it clear that this case is just not about
the subject matter of those three treaties.
50. If we briefly consider each of them in turn. The Montreal Convention is concerned with
crimes against the safety of civil aviation. The only bearing it could possibly have, the only
bearing claimed on this case, concerns an incident four years ago. On any analysis the rights which
the Montreal Convention confers upon Congo have no point of contact with the relief which Congo
is seeking. Moreover, the Congolese reference to the Montreal Convention makes a mockery of
the requirement of urgency as one of the preconditions for the exercise by the Court of its powers
under Article 41 of the Statute. The need to protect Congo’s rights under the Montreal Convention
can hardly be said to be urgent when the only reference to Montreal is in connection with
something said to have happened in October 1998 and which has already been the subject of
proceedings which have been discontinued.
51. Nor does the relief sought fall within the scope of the Convention on the Elimination of
Discrimination against Women. If one reads through the substantive provisions of that Convention
and compares them with the Application and the Request, it is apparent that they are dealing with
entirely different matters. In particular, there is no way in which the rights which Congo claims lie
at the heart of the present case ¾ respect for sovereignty, territorial integrity, independence,
inalienable rights in respect of natural resources ¾ could possibly be said to constitute rights which
might form the subject of a decision in exercise of any jurisdiction conferred by Article 29 of this
Convention. And a glance at the relief sought by Congo in its Request shows how wide is the gap
between that relief and the scope of the Convention.
52. Finally, Mr. President, the lack of any connection between the WHO Constitution and
the present case is stark. The Congo’s attempt to rely upon the WHO Constitution is based upon
- 28 -
the theory that since the WHO is concerned with health and the conduct of this war affects health,
the case falls within the scope of the WHO Constitution. The fallacy in that approach is obvious if
one glances at the Advisory Opinion of this Court in the WHO Nuclear Weapons case. The Court
there drew a sharp distinction between the health effects of warfare and the legality of the waging
of war, holding that the WHO was concerned with the former and not with the latter (Legality of
the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996,
pp. 78-81, paras. 25-26).
53. Yet it is allegations that Rwanda is waging war unlawfully which are the essence ¾
indeed the totality ¾ of the Congolese case. And as such that case has nothing to do with the
WHO Constitution, and the rights which the Congo asks the Court to protect are not rights which
could form the subject-matter of a decision under Article 75 of that Constitution.
54. Rwanda, therefore, requests the Court to dismiss the Request for provisional measures.
VI. The case should be removed from the Court’s List
55. But there is another matter, Mr. President, to which I must turn briefly before I conclude.
As the learned Agent for Rwanda made clear in his opening remarks, Rwanda also asks the Court
to order that the present case be removed from its List. Now, we recognize that this is an
exceptional step. That the Court has power to take this step at the provisional measures stage is
nevertheless evident from its Orders in the cases concerning Legality of Use of Force brought by
the Federal Republic of Yugoslavia against Spain and the United States three years ago. The Court
there found that the jurisdictional grounds advanced by the Applicant manifestly failed to afford a
basis for jurisdiction and ordered that the cases be removed from the List at once.
56. The decision whether or not to remove a case from the Court’s List is, of course, an
entirely distinct step from the decision whether or not there is a prima facie basis for jurisdiction
for the purposes of exercising the provisional measures power. Again, the Legality of Use of Force
cases furnish an illustration. The Court found, by a large majority, that there was no prima facie
basis for jurisdiction in any of the ten cases, but it only ordered two of them to be removed from
the Court’s List. Nevertheless, it is plain that the Court has the power to remove a case from its
- 29 -
List where the hearing on a request for provisional measures makes clear that there is no ground on
which the jurisdiction of the Court could possibly be based.
57. Rwanda maintains that this is just such a case. None of the eight grounds for
jurisdiction ¾ nine, if one includes the one invoked this morning ¾ which Congo has offered ¾
not one of them, Mr. President ¾ offers any prospect whatever of jurisdiction on the merits. One
ground (jus cogens) has clearly been rejected in the jurisprudence of the Court, another (the Torture
Convention) is a treaty which is not even binding on Rwanda, two more (the Genocide and Race
Discrimination Conventions) are the subject of reservations identical to those of Spain and the
United States in the Legality of Use of Force cases, and therefore exclude the jurisdiction of the
Court.
58. Of the others, the Unesco Constitution does not provide a basis for the contentious
jurisdiction of the Court anyway. With the other three treaties on which reliance is placed, the
essential preconditions to the creation of jurisdiction have manifestly not been met.
59. Now that would be reason enough for the Court to remove the case from its List at this
stage, but there is another factor to be borne in mind as well. The Congo is not coming to the Court
against Rwanda for the first time on these facts. It has already brought and discontinued one action
and is in the process of contesting proceedings with Uganda. Now two points arise out of that
procedural background, which we submit have a bearing on our suggestion that the case be
removed from the List. The first is that Congo, having had the opportunity of having the issue of
jurisdiction tried in its last action, preferred to withdraw that Application and has now come back
with what is, at heart, a replica of its old Application. We say that this is an abuse of the process of
the Court and that the Court should now step in and remove the case from its List if it is
satisfied ¾ as we say it surely must be ¾ that there is no basis for jurisdiction.
60. The second point is that a glance at the Congolese Application against Uganda and its
Request for provisional measures demonstrates quite clearly that the Congo is making a number of
identical allegations against both Respondents without giving any hint as to the bases on which it
does so. Are these arguments being raised in the alternative? Was it Uganda or Rwanda that is
accused of shooting down an aircraft? Or is it alleging some form of joint and several liability?
- 30 -
61. Mr. President, we submit that a State has to work out this kind of issue before it comes
before this Court, before it rushes along when the Court is in the middle of hearing another case
and says: “Our Application and our Request must have priority, you must hear us at once!” And
that if a State brings a case with a manifestly defective jurisdictional basis, then the appropriate
course is for the Court to strike the case from its List now, rather than have it clogging up
proceedings for several years to come.
62. So Mr. President, our submissions are twofold: that the Request for provisional
measures be dismissed and that the case be removed from the Court’s List forthwith. Thank you
very much indeed, Sir, for your attention.
The PRESIDENT: Thank you very much, Professor Greenwood. Je vous remercie. C’est
par cet exposé que prend fin l’audience de cet après-midi. Les Parties ont fait savoir à la Cour
qu’elles désiraient, ainsi que la possibilité leur en avait été offerte, prendre la parole à nouveau afin
d’être entendues en leur réplique orale. La République démocratique du Congo prendra dès lors la
parole demain à 9 h 30 et la République rwandaise demain à 12 h. Chacune des Parties disposera
pour sa réplique d’un temps de parole maximum d’une heure. La séance est levée.
L’audience est levée à 16 h 15.
___________