INTERNATIONAL COURT OFJUSTICE
CASECONCIERNINAmED ACTIVITIES
ONTHETERRITORYOFTHECONGO
(NEW APPLICATION2002)
(DEMOCRA'I'REPUBLICOF THECONGO
vRWANDA)
MEMORIAL OF RWANDA
January2003 INTERNATIONALCOURTOF JUSTICE
CASECONCERNINGARMED ACTIVITIES
ON THETERRITORYOF THE CONGO
(NE)WAPPLICATION 2002)
(DEMOCRATICREPUBLICOF THE CONGO
vRWANDA)
MEMORIALOF RWANDA
Januar2003 'TABLEOFCONTENTS
Part1 Introduction
PartII FactsRelevantto thePresent Proceedings
PartIII TheCourtlacksJurisdiction toEntertain
the Application
A Pri,rc@lesofJurisdiction (3.1-3.5)
B The Conventionagainst Torture(3.6)
C TheRacial Discrimination Convention
(3.Ï1-.2)
D The Genocide Convention(3.13-3.23)
E The Conventionon theElimination of
Al1FormsofDiscrimination against
Wo,wen(3.24-3.35)
F The Constitutionof the WorldHealth
Organization(3.36-3.40)
G The Constitutionof UNESCO
(3.4.-3.44)
H TheMontreal Convention(3.45-3.71)
I Jus CogensNorms andthe Vienna
Corrventionon theLaw of Treaties
(3.72-3.77)
PartIV Admissibility
Part V Conclusioiisand Submissions
List of Documentsannexedto the Memorial PART 1
INTRODUCTION
1.1 On 28 May 2002, the DemocraticRepublic of the Congo (hereinafter referred to
as "the Congo") filed an Application instituting proceedings against the Republic
of Rwanda ("Rwanda'"). This was the second Application which the Congo has
filed against Rwanda. An earlier Application, filed on 23 June 1999 ("the 1999
Application"), was withdrawn by the Congo by letter of 15 January 2001,which
resulted in anrder of'the Courtof 31January 2001, noting the discontinuance of
the proceedings and ordering the removal of the case from the Court's list. While
the two sets of proceedings are, in theory, separate, large parts of the two
Applications are identical. Moreover, both the fact of the earlier Application and
the circumstances of the discontinuance of the earlier proceedings have
implications for the present case.
1.2 What the Congo percrives to be the nature of the present case is revealed in the
opening section of the Application, entitled "Des parties et de l'objet du
différend".' The Government of the Congo there states that it commenced the
proceedings -
... en raison des violations massives, graves et flagrantes des droits de
l'homme et du droit international humanitaire, au mépris de la "Charte
internationale des droits de l'homme", d'autres instruments internationaux
pertinents et résolutionsimpératives du Conseil de Sécuritéde l'ONU.
Ces atteintes graves et flagrantes découlentdes actes d'agression armée
perpétrés parle Rwanda sur le territoire de la RépubliqueDémocratique
du Congo eri violation flagrante de la souveraineté et de l'intégrité
territoriale de la République Démocratique duCongo, garantie par les
chartes de l'ONU et de l'OUA.
I
Application,PaO,p.1.1.3 The Application then iiccusesRwanda of violations of the law relating to the use
of force and non-interlention, the law of armed conflict, the law of human rights
and the international 1a.wof natural resources.
1.4 The nature of the cast:, as perceived by the Congo, is also reflected in the relief
sought. At the close of its Application, the Congo asks the Court to -
Dire etjuger que:
(a) le Rwanda a violé et viole la Charte de l'ONU (article 2,
paragraphes 3 et 4) en violant les droits de l'homme qui sont le but
poursuivi par les Nations Unies au terme du maintien de la paix et
de la scicuritinternationales, de mêmeque les articles 3 et 4 de la
Charte de I'OAU;
(b) le Rwanda a violéla Charte internationale des droits de l'homme
ainsi que les principaux instruments protecteurs des droits de
l'homnle dont notamment la Convention sur l'élimination des
discriniinations à l'égard des femmes,la Convention internationale
sur 1'él.iminatiode toutes les formes de discrimination raciale, la
Conveintioncontre la torture et autres peines ou traitements cruels,
inhumiiins ou dégradants,la Convention sur la préventionet la
répressNion du crime de génocide du 9 décembre 1948, la
Constitution del'OMS, le Statut del'UNESCO;
en abattant à Kindu, le 09 octobre 1998,un Boeing 727, propriété
(c)
de la compagnie Congo Airlines,et en provoquant ainsi la mort de
quarante personnes civiles, le Rwanda a également violé la charte
de l'ONU, la convention relative à l'aviation civile internationale
du 07 décembre 1944 signée a Chicago, la convention de la Haye
du 16 décembre 1970 pour la répressionde la capture illicite
d'aéronefset la convention de Montréal du23 septembre 1971
pour la répression d'actes illicites dirigéc sontre la sécuritéde
I'aviation civile;
(d) en tuant, massacrant, violant, égorgeant, crucifiant,le Rwanda s'est
rendu coupable d'un génocidede plus de 3,500,000 Congolais,
ajoutées les victimes des récents massacres dans la Villede
Kisangani, et a violé le droit sacré à la vie prévu dans la
Déclaration Universelle des Droitsde l'Homme et dans le Pacte
international sur les droits civilset politiques, la Convention surla
préveintionet la répression du crime de génocide, et d'autres
instrumentsjurisdiques internationaux pertinents; En conséquence, et conformément aux obligations juridiques
internationales susmentionnées, direetjuger que:
(1) toute force armée rwandaiseà la base de l'agression doit quitter
sans délaile territoire de la République Démocratique du Congo;
afin de permettreàla population congolaise dejouir pleinement de
ses droits à la paix, à la sécurité,à ses ressources et au
développement;
(2) le Rwanda a l'obligation de faire en sorte que ses forces arméeset
autres se retirent immédiatement et sans condition du temtoire
congoliiis;
la République Démocratiquedu Congo a droit à obtenir du
(3)
Rwanda le dédommagementde tous actes de pillages, destructions,
massacres, déportationsde biens et des personnes et autres méfaits
qui sont imputables au Rwanda et pour lesquels la République
Démocratiquedu Congo se réservele droit de fixer ultérieurement
une évaluation précise des préjudices o,utre la restitution des biens
emportés.*
1.5 While the Memorial thus refers to a broad range of treaty provisions and
customary law principles which Rwanda is accused of violating, the central
element of the case i!;the allegation of aggression. That is made clear on page 7
of the Application, urhere the Congo, afier listing the treaties on which it relies,
states that-
La République Démocratique du Congo considèreque toutes ces atteintes
trouvent leur cause fondamentale dans la persistance et l'aggravation de la
violation de l'article 2 paras 3 4tde 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 intégritétemtoriale et de son indépendance.
It is this allegation which plainly constitutes the heart of the Congo's case.
1.6 On the same day as it filed its Application, the Congo filed a Request for the
Indication of Provisional Measures of Protection. The Court held hearings in
respect of this Requc:ston 13 and 14 June 2002. At those hearings, the Agent and
2
Application,PaV, pp. 32-34. counsel of Rwanda contended that there was no prima facie basis for the
jurisdiction of the Court and, therefore, that a fundamental condition for the
indication of provision.almeasures had not been satisfied. By anOrder of 10July
2002, the Court, by fi~urteenvotes to two, held that "the Court does not in the
present case have the prima facie jurisdiction necessary to indicate those
provisional measures requested by the Congov3and rejected the request. The
Court, however, decliriedRwanda's request that the casebe removed from the list.
1.7 At the meeting held brtween the President of the Court and the representatives of
the Parties on 4 September 2002, the Agent of Rwanda repeated that the
Govemment of Rwanda considered that the Court lackedjurisdiction to entertain
the Congo's Application and proposed that the procedure laiddown in Article 79,
paragraphs 2 and 3, of the Rules of Court (as amended) be followed, with the
questions of jurisdiction and admissibility being determined separately andbefore
any proceedings on the merits. The Agent of the Congo did not oppose that
proposal. Accordingly, by an Order dated 18 September 2002, the Court decided
that the written proceedings should first be addressed to the questions of the
jurisdiction of the Court to entertain the Application andto its admissibility. It
fixed 20 January 2003 as the time-limit for Rwanda to file a Memorial dealing
exclusively with those questions and 20 May 2003 for the Counter-Memorial of
the Congo.
1.8 In accordance with that Order, the present Memorial deals exclusively with
questions of jurisdiction and admissibility. Except where they bearupon these
questions, Rwanda has not entered into any discussion of the factual allegations
set forth in the Application and the "Livres Blancs" which accompanied it.
Rwanda has accordingly confined itself to a brief treatrnent of certain factual
matters, including developmentssince the hearings onthe Request for Provisional
Measures, which art: relevant to the questions of jurisdiction and admissibility.
These are the subjec:tof Part II of this Memorial. Beyond that, Rwanda merely
3 Orderof10 July2002,para.89. wishes to place on record that it does not accept the allegations made by the
Congoin the Application and the"Livres Blancs".
1.9 Rwanda submits that the issues before the Court at the present stage of the
proceedings are verysi.mpleand canbe dealt with quite shortly. In itsApplication
and at the oral heariiigs on its Request for Provisional Measures, the Congo
soughttobase thejurisdiction of the Court on the following-
(1) the Convention against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment, 1984 ("the Torture
Conver~tion");~
(2) the Convention on the Elimination of al1 Foms of Racial
Discrinlination, 1965("the Racial Discrimination Convention");'
(3) the Co:lventionon the Prevention and Punishment of the Crime of
Genocide, 1948("the Genocide C~nvention");~
(4) the Convention on the Elimination of al1Forms of Discrimination
againsl.Women, 1979("CEDAW");'
(5) the Statuteof the World Health Organization;'
(6) the Constitution of
4 Annex 1
5
Annex2.
6 Annex3.
7 Annex 4.
8
Annex 5.
9
Annex6. (7) the Moritreal Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation, 1971 ("the Montreal
Conven~:ion");'a ~nd finally
(8) rules of jus cogens, imposing obligations erga omnes, in
connection with which the Congo refers tothe Vienna Convention
on the Law of Treaties, 1969."
1.10 Rwanda contends that none of these instruments or rules of customary
international law can found the jurisdiction of the Court in the present case. This
contention is developed in Part III of this Memonal. Accordingly, Rwanda
submits thatthe Court lacksjurisdiction to entertain the Application.
1.11 Altematively, Rwandz,contends that, even if one or more of the treaties invoked
by the Congo, confer!;jurisdiction in respect of any part of the Application, the
Application is nevertheless inadmissible. Rwanda's argument regardingthe
inadmissibilityof the .4pplicationis set out in PartIV of this Memorial.
1.12 Since the Congo's Application is in many respects a repetition of the 1999
Application, Rwanda also confirms the argumentsset out in its Memorial filed in
2000 in response to that earlier Application.
1.13 Rwanda'ssubmissions are contained in PartV of this Memorial.
-
IO Annex7.
II
Annex8. PARTII
FACTS RELEVANTTO THEPRESENT PHASEOFTHE
PROCEEDINGS
2.1 As stated in Part1,Rwanda considersit inappropriate to enter into debate with the
Congo regarding the fiictualallegations in the Application and the "Livres Blanc"
which accompanied it. Rwanda does not accept the allegations madetherein but
their truth or falsity are irrelevant to the issues which anse on the preliminary
objectionsof Rwanda setout in this Memonal.
2.2 The factual backgrourid tothe involvement of Rwanda in the Congo was set out
by the Agent of Rwarida in the oral hearings in June 2002, to which the Court is
invited to tum.I2
2.3 Since those oral hearings were held, the Govemment of Rwanda and the
Govemment of the Clongohave concluded, on 30 July 2002, a Peace Agreement
("the Pretoria Agreenient"),13which provided for the withdrawal fiom the Congo
of al1Rwanda forces and the active CO-operationof the Congolese Govemmentin
removing the threat posed to Rwandaby the Interahamwe and fonner Rwandan
Armed Forces personinelin the Congo.
2.4 Rwanda implemented its part of the Pretoria Agreement in SeptemberIOctober
2002 and has now withdrawn al1its forces from the territory of the Congo, as
confirmed by the Third Party Verification Mission and the United Nations
Security Council.I4
-
12 Seethe speeches Mr Gahima at CR 2002/37,6-10 and CR2002139,pp. 11-13.
13 United NationsDoc. S/2002/914, An11.
14 Secunty Council resolution 1445(2002), Annex 12. PART III
THE COURT LACKS JURISDICTION
TO ENTERTAIN THE APPLICATION
A. Principles ofJurisdiction
3.1 It is well established. in the jurisprudence of the Court that "one of the
fundamental principles of its Statute is that it cannot decide a dispute between
States without the consent of those States to its jurisdiction" (Case concerning
East ~imor).'~ Accordingly, as the Court held in its Orders of 2 June 1999 in the
ten Cases concerning LegaliS of Use of Force, "the Court can therefore exercise
jurisdiction only between States parties to a dispute who not only have access to
the Court but also have accepted the junsdiction of the Court, either in general
form or for the individual dispute ~oncerned".'~ This principle was reaffirmed
and applied by the Court in its Order of 10July 2002 in the present case."
3.2 Moreover, when that consent has been given, the junsdiction of the Court is
limited to mattersfalliiigwithin the scope of the provision in which that consent is
expressed. It is for that reason that when the Court has found that it has
jurisdiction only on thiebasis of a treaty provision, such as Article 14(1) of the
Montreal Convention or Article JX of the Genocide Convention, it has held that it
lacks jurisdiction over any allegation contained in the Application which falls
outside the scope of that treaty.I8 As Judge ad hoc Lauterpachtput it,
15
Case concerning EastTimor(Portugalv.AustraliICJ Reports, 1995,p. 90, at para. 26.
16 See, e.gCase concerningLegaliQ of UseofForce (Yugoslaviav.Belgium), ICReports, 1999,
p. 124,atpara. 20.
17 Order of 10July 2002, para. 57.
18
See, e.g.Case concerning Questions of Interpretationand Application of the 1971 Montreal
Conventionarisingfrom the Aerial Incidentut Lockerbie (LibyanArab Jamahiriya v. UnitedKingdom) The Court can only act in a case if the parties, both applicant and
respondent, have conferred jurisdiction upon it by some voluntary act of
consent. ... Wliateverform the consent may take, the range of matters that
the Court can then deal with is limited to the matters covered by that
consent.lg
In accordance with that principle, the Court has held (most recently in the Oil
~latjorrns~~ and ~ockerbie" cases) that when an applicant asserts that jurisdiction
is based upon a dispute settlement provision in a treaty dealing with a specific
subject-matter, the Coi~rtmust examine the application and the treaty provision in
question at the stage olfpreliminary objections, in order to determine whether the
dispute, as pleaded by the applicant, falls within the scope of the jurisdictional
provision of the treaty.
In accordance with these principles, it is for the Congo to establish -
that bo1;hthe Congo and Rwanda have accepted the jurisdiction of
(a)
the Court, either in general form or for the purpose of the
individiualdispute or type of dispute which the Congo wishes to
bring before the Court; and
(b) that, if there is indeed an instrument in force between the Congo
and Rwanda by which both States have accepted thejurisdiction of
(PreliminaryObjections), ICJ Reports, 1998, p. 8 at para. 36 and Joint Declaration of Judges Guillaume
and Fleischhauer at p.50 (Article I~l(1)of the MontrealConvention), Case concerning theApplication
of thePreventionand Punishment ofthe Crime ofGenocide (Bosnia andHenegovina v. FederalRepublic
of Yugoslavia) (FurtherProvisionalMeasures), ICJ Reports, 1993,p. 325, at para. 26 (ArticIX of the
Genocide Convention).
19
Case concerning the Application of thePrevention andPunishment of the Crime of Cenocide
(Bosnia and Herzegovina v. Feaeral Republic of Yugoslavia) (Further Provisional Measures), ICJ
Reports, 1993,p. 325, atp. 412.
20 Case concerning Oil Pla@orms (Islamic Republic of Iran v. United States of
America)(PreliminaryObjections), ICJ Reports, 1996,p. 803, at para. 16.
21
Case concerning Questionsof Interpretation andApplication of the 1971 Montreal Convention
arisingfrom theAerial Incident al Lockerbie(LibyanArab Jamahiriya v. UnitedKingdom) (Preliminary
Objections),ICJ Reports, 1998,p. 8;Case concerning Questions ofInterpretation and Application ofthe
1971 Montreal Convention arisingfrom the Aerial Incidentat Lockerbie (LibyanArab Jamahiriya v.
UnitedStates ofAmerica) (Prelirninary Objections),CJ Reports, 1998,p. 114. the Court, the dispute set outin the present Application falls within
the scope of that acceptance.
3.4 There is no question of Rwanda having accepted the jurisdiction of the Court in
general form. Although the Congo refers to its own declaration under Article
36(2) of the Statute of the Court, the Court confirmed, in its Order of 10 July
2002, 22that Rwanda lhasmade no such declaration. Accordingly, Article 36(2)
cannot afford a basis for the jurisdiction of the Court. That jurisdiction can be
established, if at all, orilyon the basis of Article36(1).
3.5 In Part IIof its Appliciition,the Congoadvances eight grounds for thejurisdiction
of the Court under Article 36(1).23These are summarised in paragraph 1.8of this
Memonal. Rwanda considers thatnone of the grounds advanced by the Congoin
fact confers jurisdiction on the Court to entertain all, or any part of, the present
Application. This Mernorial will consider each of the grounds advancedby the
Congo in tum. For the avoidance of doubt, Rwanda wishes to make clear thatit
confirms al1of the sul~missionswhich its agent and counsel made with regard to
this issue at the oralearings on the Request for Provisional Measures.
B. TheConventioiragainst Torture
3.6 The Congo refers to the Torture Convention, 1984, Article 30(1) of which
contains a provision for the reference to the Court of disputes concerning the
interpretation or application ofthe on vent ion Rw^^nda is not, however, aparty
22 Para. 59.
23 At the oralhearingson 13and 14June 2002,TheCongo disavowedany intentionofrelyingon the
United Nations Convention on the Privileges and Immunisf the Specialized Agencies, 1947, or the
Headquarters Agreement between MONUC anT dhe Congo asbases fortheurisdiction of theCourt(Order
of 10July2002,para. 62). Rwandawilltherefore makeno furthercommentwith regard tothem.
24
Annex 1. to this Conventi~n.~'Accordingly, the Torture Convention manifestly cannot
provide abasis for thejurisdictionof the Court.
C. TheRacial Discrimination Convention
3.7 The Congo also relies on the Racial Discrimination Convention, 26 Article 22 of
whichprovides that -
Any dispute between two or more States Parties with respect to the
interpretation or application of this Convention, which is not settled by
negotiation or by the procedures expressly provided forin this Convention,
shall, at the request of any of the parties to the dispute, be referred to the
International Court of Justice for decision, unless the disputants agree to
another mode cjfsettlement.
3.8 Rwanda acceded to this Conventionon 16April 1975 and the Congo on 21 April
1976and the Conventiionis therefore binding on both State~.~'Rwanda, however,
entered the following resewationon accession-
The Rwandese Republicdoes not consider itself as bound by article 22 of
the Conventiori.
If this reservation is valid, then the Convention cannot afford a basis for the
jurisdiction of the Coi~rtin the present case, for the resewation excludes Article
22 in its entirety.
3.9 At the oral hearings in June 2002, the Congo argued thatthe Rwandan resewation
was invalid, because it would "prevent the attainment of the very purposes and
object of the treaty" and allow Rwandato violate the Convention with imp~nity.~'
The Congo's argum.ent appears, therefore, to be that the resewation is
2s Order of 10 July 2002, para. 61.
26
Annex 2.
27
Order of 10July 2002, para65.
28 Order of 10July 2002, para25. impermissible, becaust: it is said to be contrary to the object and purpose of the
C~nvention.~~
3.10
The Convention clearly envisages that States may make reservationsto it. Article
20(1) sets out a procedure for the Secretary-General of the United Nationsto
notiG States of any reservations made and prescribes a penod of ninety days
within which objections to any reservation must be made. Article 20(2) then
provides that -
A reservation incompatible with the objectand purpose of this Convention
shall not be permitted, nor shall a reservation the effect of which would
inhibit the operationof any of the bodies establishedby this Conventionbe
allowed. A reservation shall be considered incompatibleor inhibitive if at
least two-thirds of the States Partiesto this Convention objectto it.
The second sentence of Article 20(2) thus provides an authoritative means of
determining whether a particular reservation is incompatible with the object and
purpose of the Convention.
3.11 Rwanda is not alone in having entered a reservation to Article 22. According to
the United Nations Treaty Collection records, twenty-one other States currently
maintain reservations to that provision, while a number of others had originally
made such reservations but have subsequently withdrawn them.30 As the Court
observed in its order of 10 July 2002, the Rwandan reservation did not attract
objections from two-thirds of the States Partiesto the Convention. Indeed, the
Congo itself did not object to the reservation (or, for that matter, to the similar
reservations made by other States)." It follows that the reservation must be
regarded as valid under the test laid down by the Convention. It is, therefore,
unnecessary to determine whether the reservation would have beenregarded as
compatible with the object and purpose of the Convention under general
29 ViennaConventionon the LawofTreaties, 1969,Article19(c);Annex8.
30 Annex9.
31
Orderof 10July 2002,para..67. Seealso Annex9. principles of the law OFtreaties,although, forthe reasons given in connectionwith
Rwanda's reservationto the Genocide Convention, 32it is clear that it would also
be valid under those general principles. Nor is it necessary to consider what
would be the effect of a determination that the Rwandan reservation was invalid;
in particular, whether the effect would be that Rwanda could not be regarded as
party to the Convention on the ground thatthe reservation expressed a condition
precedentto its consent to be bound.
3.12 Rwanda's reservation to Article 22 thus means that the Racial Discrimination
Convention cannot afford a basis for the jurisdiction of the Court in the present
case.
D. TheGenocideConvention
3.13 The Congo also relies on Article IX of the Genocide Convention, 1948,33 which
provides that -
Disputes between the Contracting Parties relating to the interpretation,
application or fulfilment of the present Convention, including those
relating to the iresponsibilityof a State for genocide or for any of the other
acts enumerated in articleIII,shall be submitted to the International Court
of Justice at the request of any of the parties to the dispute.
3.14 The Congo acceded tc the Convention on31 May 1962 and Rwanda on 16Apnl
1975 and the Converition is currently in force between the two States.34 On
becoming party to the Convention, however, Rwanda entered the following
reservation-
The Rwandese Republicdoes not consider itself as bound by article IX of
the Conventior~.~'
32
Discussed inparas. 3.13 to 3.23, below.
33 Annex3.
34 Order of 10July 2002, par69.
35
Annex 9. If this reservation is valid, then the Convention cannot afford a basis for the
jurisdiction of the Court in the present case, for the reservationexcludes Article
IX in its entirety.
3.15 The Congoargues that the reservationis incompatible with the object and purpose
of the Convention and therefore invalid. It also contends that the reservation is
invalid on the ground that the Conventioncontains rules which have the statusof
jus cogens and which create obligations erga omnes. The Congo also maintains
that Article 120 of the Statute of the InternationalCriminal Court ("ICC"), which
prohibits reservations i:othe Statute of the ICC, is indicative of an evolution in
international law to the point wherea reservation concerning genocide shouldnow
be regarded as inoperative. Finally,the Congo argues that Rwandais precluded or
estopped from relying on the reservation,because Rwanda had itself asked the
United Nations Security Council to create an international criminal tribunal to try
individuals accused of participationin the genocide which occurred in Rwandain
1994.36
3.16 There are several reasons why these arguments are without foundation andwere
rightly rejected by tht: Court in detemining whether a prima facie basis for
jurisdiction existed.j7
3.17 First, the undoubted fact that thenoms codified in the substantive provisions of
the Convention have the status of jus cogens and create rights and obligations
erga omnes (as the Court has repeatedly stated 38)is entirely separate from the
question whether the lconvention confers jurisdiction on the Court in a dispute
between two or more States. Thus, the Court held in the East Timor case that the
fact that a particular nom creates rights and obligations erga omnes does not in
36 The Congo's argumentsare summarisedin paragraph 22 of the Order of 10July 2002.
37
Order of 10July 2002, para. 72.
38
See,most recently, paragraph 71 of the Order of 10July2002 and the decisions cited therein. itself suffice to confer jurisdiction on the Court with respect to a dispute
concerningthe application of those rights andobligation^.^'
3.18 Secondly, the Congo's allegation that Rwanda's resewation is incompatible with
the object and purposc:of the Genocide Convention is quite simply untenable.
The reservation relate:; not to the substantive obligations of the parties to the
Convention but to a p~oceduralprovision. It is therefore inherently unlikelythat
such a reservation coilld be incompatible with the object and purpose of the
Convention.
3.19 Moreover, Rwanda i:; by no means the only State party to the Genocide
Convention to have entered a reservation to Article IX. According to the United
Nations Treaty Collection records, fourteen other States currently maintain
reservations to that prc~vision,while a number of others had originally made such
reservations but have :;ubsequentlywithdrawn them.40While a small minority of
States objected to thos~:reservations, themajonty of the 133 States parties did not
do so. Indeed, the Corigodid not object to the Rwandan resewation at the time it
was made and gave no indication,prior to the oral heanngs of June 2002, that it
might have any objectionto that reservation.
3.20 In the Cases concernl'ngLegality of Use of Force, the Court itself considered
reservations by Spain andthe United States of America which were substantially
identical to that of R.~anda.~' On the basis of those reservations, the Court
concluded, by large m.ajorities,not only that there was no prima facie basis for
jurisdiction but also tliat the absence of jurisdiction was manifest and the cases
should therefore be re:movedfrom the Court's List. The latter decision clearly
demonstrates that the Court considered there was no room for doubt about the
39 CaseconcerningEast Timor(Portugalv.Australia),ICJReports, 1995,p. 90 atpara. 29.
40
Annex9.
41
Case concerning Legalityof Use of Force (Yugoslaviav. Spain), ICJ Reports, 1999,p. 761 at
paras.32-33and CaseconcerningLegalityof Useof Force (Yugoslavv.United Statesofdmerica), ICJ
Reports, 1999,p.916at paras. 24-25. validity and effect of the Spanish and United States reservations. There is plainly
no basis for distinguishing betweenhose reservations and that of Rwanda.
3.21 Thirdly, Article 120 of the Statute of the ICC (to which Rwandais neither a party
nor a signatory) has nc bearing whatever on this issue. The fact that the States
which drew up the Statute chose to prohibit al1reservations to that treaty in no
way affectsthe right of States to make reservations to other treaties which, like the
Genocide Convention,(10not contain such a prohibition.
3.22 Finally, the creation of the International Criminal Tribunal for Rwanda to try
individuals for crimes which include genocide is an entirely separate matter from
the jurisdiction of this Court to hear disputes between States. Therecan be no
question of an otherwise valid reservation to Article IX being rendered
"inoperative", because the reserving State supported the creation by the Security
Council of a criminal tribunal withjurisdiction over individuals.
3.23 Article IX of the Genocide Conventioncamot, therefore, provide a basis for the
jurisdiction of the Court in the present case.
E. TheConventionon theEliminationof al1Forms ofDiscrimination against
Women
3.24 The Congo relies, next, upon the Convention on the Elimination of al1Forrns of
Discrimination against Women. Article 29(1) of that Conventionprovides that -
Any dispute between two or more States Parties concerning the
interpretation01.application of the present Convention whichis 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 Justiceby request in conformity with the Statute of
the Court.
3.25 As is the case with Article 14(1)of the Montreal Convention (which is considered
below), this provision c:learlylays down a number of preconditions which must be
satisfiedbefore thejurisdiction of the Courtcan be founded:- there rriust be a dispute between the parties conceming the
(1)
interpretation or applicationof the Convention;
(2) it must have proved impossible to settle that dispute by
negotiation;
(3) one of the parties must have requested that the dispute be
submitted to arbitration and the parties must have been unable to
agree upon the organizationof the arbitration; and
(4) six mo~ithsmust have elapsed from the date of the request for
arbitration.
3.26 These conditions are riot formalities. Article 29(1) does not make the Court the
primary forum for the resolutionof the disputes to which it applies - that forum is
arbitration, and even ai-bitrationis to be invokednly where a dispute has not been
settled by negotiation. The role of the Court is as a guarantor in the event that the
provisions for negotiation and arbitration fail, that is to Sayif the parties to the
dispute are unable to ~esolvetheir 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 essential
conditions precedent i:othe creation of jurisdiction in the Court. It is therefore
incumbent upon any ripplicant State wishing to seise the Court under Article 29
to demonstrate that tht:conditionslaid down in that provision have been met.
3.27 None of these conditions has been satisfied in the present case. With regard to the
first requirement - thiit there must be a dispute between the Congo and Rwanda
regarding the interprt:tation or application of the Convention - 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. Inone frequently quoted
passage, the Court has said that- ...it is not sufficient for one party to a contentious case to assert that a
dispute exists vrith 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 th<:dispute proves its non-existence. Nor is it adequate to
show that the ititerests of the two parties touch a case are in conflict. It
must be shown that the claim of one party is positively opposed by the
other. (SouthFVzsA t frica Cases, ICJ Reports, 1962,p. 319,at p. 328.)
In the present case, the:rehas been no claim by the Congo, prior to its filing of the
Application. At no tirne did the Congo advance any claim that Rwanda was in
breach of the Converltion or suggest that there was a dispute regarding the
interpretation of any p:rovisionof the Convention. Rwanda quite simply has no
idea which provisions of this Convention the Congo considers to be in issue or
what aspect of their iiiterpretation or application the Congo considers to be in
issue. To borrow the languageusedby the Court in the passage quoted above,the
Congo has made no claim which Rwandacanpositively oppose.
3.29 It is tme that, as pointcd out by Judge Higgins in her Separate Opinion appended
to the Order of 10 July 2002, there is a well established practice in human rights
tribunals that it is not riecessaryfor an individual making an application to such a
tribunal to identifi in his or her applicationwhich specific provisions of thetreaty
in question are alleged to have been breached. Given the inequalities in
proceedings between an individual and a State and the difficulties which often
confront the individuiil applicant in such a case, that practice is no doubt
justifiable and even desirable in cases brought by individuals.
3.30 Those considerations ;ire not, however, applicable to the question whether the
International Court of Justice has junsdiction in proceedings instituted by one
In such
State against another under Article 29 of the present Convention.
proceedings there is no inequality between the parties. Moreover,in contrast to
the jurisdiction of hunian rights tribunals, the International Courtof Justice has
jurisdiction under Article 29 (and the similar provisions in a number of other
treaties) only where a dispute has proved impossibleof solution by other means.
For that to be the case, some identification of the dispute must have occurred United States of Arne~ica).~' In that case, the Court noted that Libya - whose
contacts with the Unitrd States of America were a great deal more tenuous and
infrequent than those of Congo with Rwanda - had proposed arbitrationunder the
relevant provision of the Montreal Convention (whichis in substantially the same
terms as Article 29(1) of the present Convention ") and that this proposa1 had
received no answer.+'There is nothing comparable here.
3.35 The Congo's failure to comply with the essential preconditions imposed by
Article 29, means that that provision cannotfumish a basis for the jurisdiction of
the Court in the preseni:case.
F. TheConstitutio.r zf the WorldHealth Organization
3.36 The Congo also relies iiponArticle 75 of the WHO Con~titution,~w ' hich provides
that -
Any question 01.dispute conceming the interpretationor application of this
Constitution wliich is not settledby negotiation or by the Health Assembly
shall be referred to the International Court of Justice in conformity with
the Statute of i:heCourt, unless the parties concemed agree on another
mode of settleaient.
Both the Congo and Rvirandaare members of the WHO.
3.37 Article 75 cannot, hou,ever, establish the junsdiction of the Court in the present
case for three reasons. First, Article 75 clearly imposes preconditions on the
seisin of the Court, nanielythat-
(1) there miist be a dispute conceming the interpretationor application
of the C~~nstitution;
42 ICJReports, 1998,p.115.
43 Seeparas. 3.45 to 3.71,belclw.
44 ICJReports, 1998,p. 115,atpara20.
45 Annex 5. (2) settlemtmt of that dispute by negotiation must have proved
impossible;and
(3) settlemimt of that dispute by the Health Assembly must have
proved impossible.
3.38 In the present case, there has been no hint by the Congo, prior to its initiation of
the present proceedings before the Court that there was anydispute between itself
and Rwanda regarding the interpretation or applicationof the WHO Constitution,
nor has there been anIrattempt by the Congo to resolve such a dispute either by
negotiation or by reference to the Health Assembly. For the reasons given in
connection with CEDAW, the general assertion that negotiation is impossible is
not enough. Moreovei.,even if it were sufficient, that would be no excusefor the
failure of the Congo to bnng the dispute which it now claims to exist before the
Health Assembly. Article75 of the Constitution confersjurisdiction on the Court
if, and only if,hese conditionsare satisfied. That is patently not the case here.
3.39 Secondly, it is difficuli:tosee how the present case can be formulated as a dispute
regarding the interpretritionor application of the Constitution ofthe WHO. As the
Congo has itselfpointcd out, the case is al1about allegations of aggre~sion.~~ Yet
these are not matters ~vhichfa11within the competence of the WHO as the Court
made clear in its Advisory Opinion on Legality of the Use by a State of Nuclear
Weapons inArmedCo,vfli~t.~'
3.40 Thirdly, the one provision of the WHO Constitution to which the Congo makes
reference is Article2. Yet, as the Court pointed out in its Order of 10 July 2002,
that provision imposes obligations upon the WHO itself rather than upon the
member States.48
46 Seepara. 1.5,above.
47
ICJReports, 1996,p. 66atparas. 26-27.
48
Orderof 10July2002,para. 82. G. The Constitution of UATESCO
3.41 The Congo furtherrelies on Article XIV of the Constitution of UNESCO, 49which
provides that -
Any question or dispute concerning the interpretationof this Constitution
shall be referretj for determination to the International Court of Justice or
to an arbitral tribunal, as the General Conference may determineunder its
rules of procediire.
Both Rwanda andthe Congoare membersof UNESCO.
3.42 However, Article XIV confersjurisdiction only in respect of the interpretation of
the Constitution and .:here is no hint of any dispute between the Congo and
Rwanda regarding inteipretation of that instrument.
3.43 Moreover, Article Xn' provides for reference to the Court only "as the General
Conference may deterniine under its Rules of Procedure". Rule 38 of those Rules,
entitled "Interpretati~~of the Constitution," provides, in paragraph3, that the
Legal Committee -
may decide by ilsimplemajority to recommend to the General Conference
that any quest~.onconcerning the interpretation of the Constitution be
referred to the InternationalCourtof Justice for an advisory opinion.
Paragraph (4) then provides that -
In cases where the Organizationis party to a dispute, the Legal Committee
may decide, 1)y a simple majority, to recommend to the General
Conference that the case be submitted for final decision to an arbitral
tribunal,arrang~mentsfor which shall be madeby the Executive Board.
3.44 As envisaged by the Constitution, therefore, the Rules make express provision for
the manner in which cpestions and disputes concerning the interpretationof the
UNESCO Constitution maybe referred to the Court. There is no question of the
49 Annex6.
50 Annex 10. procedures laid down in the Rules having been followed here. ArticleXIV(2) of
the Constitution afford:;noother basis forthejurisdiction of the Court and cannot,
therefore,fumish a basis for thejurisdiction of the Court in the present case.
H. TheMontreal C'onvention
3.45 As in its 1999 Applic:ation,the Congo invokes Article 14(1) of the Montreal
m on vent io wnhic' provides that-
Any dispute between two or more Contracting States conceming 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. If' within six months from the date of the request for
arbitration the Parties are unable to agree on the organization of the
arbitration, an;, one of those Parties may refer the dispute to the
International Court of Justice by request in conformity with theStatute of
the Court.
3.46 The Montreal Conveniion is a treaty in force between the Congo and ~wanda.'*
The Convention is, therefore, capable of constitutinga basis for thejurisdiction of
the Court in pr~ceedin~gbsetween the Congo and Rwanda. It can do so, however,
only in respect of a dispute conceming the interpretation or application of the
Montreal Convention and, eventhen, only provided that the conditions laid down
Article 14(1)have bee~imet.
3.47 Article 14(1) lays do~vna series of requirements, each of which must be met
before that provision cimconferjurisdiction upon the Court:-
(1) there niust be a dispute between the parties conceming the
interpretation or applicationof thentreal Convention;
(2) the dispute mustbe one which cannotbe settled by negotiation;
51
Annex7.
52 The Congo became a party to the Conventiono6July 1977. Rwanda becamea party on 3
November1987. (3) one of the parties must have requested that the dispute be
submitted to arbitration and the parties must have been unable to
agree upon the organization of the arbitration; and
(4) six months must have elapsed from the date of the request for
arbitration.
3.48 Whether there is, indet:d, a dispute between the Congo and Rwanda concerning
the interpretation or application of the Montreal Convention is a question for
objective determinati~ri.~~As the Court held in the OilPlatforms case,54it is not
enough that the applicant State asserts that a dispute exists under a treaty such as
the Montreal Convention, while the respondent State denies that it does. The
Court must ascertain ~vhetherthe violations of the Convention pleaded by the
applicant State do, or do not, fa11within the provisions of the Convention and
whether, as a consequznce, the dispute is one which the Court has jurisdiction
rationemateriae to entertain. The burden is on the applicant State to demonstrate
that there isa dispute fiillingwithin the title ofjurisdiction on which that Statehas
chosento rely.
3.49 The point was expressed in the following way by the Permanent Court in the
Mavrommatis Palestine Concessions case," itself cited by the present Court in
Oil Platfomzs. There the Permanent Court had to consider Article 26 of the
Mandate for Palestine which provided for jurisdiction over any dispute "relating
to the interpretation or the application of the provisions of the Mandate". The
Court indicated that, beiaringin mind that itsjurisdiction was limited and based on
consent, it needed to siitisQ itself that "the suit before it, in the form in which it
has been submitted and on the basis of the facts hitherto established, falls to be
53 See, e.g., the Advisory Opinion of the Courton Applicability of the Obligation to Arbitrate
under Section21 of the United Nations Headquarters Agreement of26 Jun1947, ICJ Reports, 1988,p.
12atp. 27.
54
ICJ Reports, 1996,p. 803, at para. 16.
55
(1924) PCIJSenes A.No.2. decidedby application of the clauses of the c an date". ^h^e present Court, inthe
Case concerning Milit~zryand Paramilitary Activities in and against Nicaragua
(Preliminary ~bjection,~),'expressed the requirementin terms of the existenceof
"a reasonable connection" 58between the treaty and the claims submitted to the
Court.
3.50 These requirements art: reinforced and strengthened where they are associated
with specific procedural requirementssuch as those contained in Article 14of the
Montreal Convention. Article 14 clearly implies thata particular allegationwill
be identified with some precision in diplomatic exchanges between the parties,
that a request will have been made that the dispute thereby generatedbe submitted
to arbitration under the Convention, and that, after six months, the parties must
have been unable to agree on the arrangements for the arbitration. This Court is
not the primary forum for the resolution of disputesunder the Convention: that
forum is arbitration. 'TheCourt's role is as a guarantor in the event that the
provisions for arbitration fail for any reason. The combination of the
jurisdictional and procedural provisions of the Montreal Convention clearly
implies that a dispute will have been clearly characterized by the parties, or at
least one of them, as one conceming the Montreal Convention, and that attempts
to arbitrate the dispute, in that character, will have failed. Having regard to
Article 14, it is not open to a Claimant, as it were incidentally and implicitly, to
put in issue the Montreal Conventionin the course of proceedings raisinga wider
dispute or set of allegations. Yet that is precisely what the Congo seeks to do
here. It characterizes the dispute as one concerning "acts of armed aggression"
and its "Statement of Facts" as pleaded reveals no allegation which, even if true,
could raise a question under the Convention. Whatever the position may be in
cases where this Court has primary jurisdiction under a treaty, it is not open to a
56 Ibid.,p.16.
'' ICJReporis1984,p.392.
Ibid.p.427(para.81). party incidentally and indirectly to raise issues under the Montreal Convention in
this way.
3.51 The scope of the Moritreal Convention is clearly and precisely defined. That
Convention concems the suppression of unlawful acts against the safety of civil
aviation. As its Preamble and Article 1 make clear, the Convention establishes a
mechanism for comba.tting terrorist offences against civil aircraft. Article 1
provides that:
1. Any per:soncommits an offence if he unlawfully and intentionally:
(a) performs an act of violence against a person on board an
aircraft in flight if that actlikely to endanger the safetyof
that aircraft; or
(b) clestroys anaircraft in service or causes damage to such an
aircraft which renders it incapable of flight or which is
likely to endanger its safetyin flight; or
(c) places or causes to be placed on an aircraft in service, by
any means whatsoever, a device or substance which is
likely to destroythat aircraft, or to cause damage to it which
renders it incapable of flight, or to cause damage to it which
is likely tondangerits safetyin flight; or
(d) clestroys or damages air navigation facilities or interferes
with their operation, if any such act is likely to endangerthe
safety of aircraft in flight; or
(e) c:ommunicates information which he knows to be false,
thereby endangeringthe safety of an aircraft in flight.
2. Any person also commits an offence if he:
(a) attempts to commit any of the offences mentioned in
paragraph 1of this Article; or
(b) is an accomplice of a person who commits or attempts to
commit any such offence.
3.52 Article 2 and Article 4 prescribe some of the circumstances in which the
Convention applies. A.rticle4(1) provides that it "shall not apply to aircraft used in military, customs or police services". Article 3 provides that each Contracting
State undertakes to make theoffencesmentioned in Article 1punishable by severe
penalties. Articles5, 6, 7 and 8 makeprovision for the establishment and exercise
of criminaljunsdiction over persons accused ofoffences under Article 1. Article
7 lays down the principle au?dedere, au? punire. Article 9 deals with joint air
transport operating organizations. Article10(1)provides that "Contracting States
shall, in accordance with international and national law, endeavour to takeal1
practicable measures for the purpose of preventing the offences mentioned in
Article 1." Articles 10(2), 11 and 12 deal with various aspects of inter-State
assistance in respect of offences. Article 13 deals with reporting to the
International Civil Aviation Organization.
3.53
It follows that the range of disputes over which the Court can derivejurisdiction
fiom Article 14(1) of the Montreal Convention is strictly confined. It is for the
Congo, as the applicant.State which seeksto foundthejurisdiction of the Court on
Article 14(1) of the R4ontrealConvention, to establish that there is a dispute
between itself and Rwanda which fallswithin thescope of this provision.
3.54 It is manifest that the vast majority of issues raised in the Congolese Application
have nothing whatever to do with the Montreal Convention and that the
Convention cannot fun~isha basis forjurisdiction in respect of the allegations in
the Statement of Facts (which nowhere even mentions matters related to the
Montreal Convention).
3.55 Notwithstanding its statement that -
l'actuel differend entre la République Démocratique du Congoet le
Rwanda concerne bien évidemment l'interprétationet l'application des
conventions précitées,59
59 Application, p. 27; the ti-eaties referred to are the Montreal Convention and the Torture
Convention.3.58 The Congo has not adequately defined the disputesaid to exist between itselfand
Rwanda regarding the interpretation or application of the Montreal Convention
and to satisQ the reqüiirementslaid down by the Court in the passage fiom the
South West Africa cases quoted in paragraph 3.27,above.
3.59 The incident said to have occurredat Kindu was the subject of a complaint by the
Congo to ICAO. 61 Althoughthis complaint was discussed bythe ICAO Council,
the Congo's representationsto the Council did nothing to clarifyits allegations.
In particular, the Congoalleged at thetime that the aircraftwas shot down not by
Rwandan forces butby rebels supportedby Rwanda. It made identical allegations
against Uganda (and, though not toICAO but only in a 1999 Application - now
discontinued - to the Court, against Burundi). No indication was given of the
basis on which Rwandamight besaidto be responsible forthe acts of these rebels
and the identical allegationsmade againstUganda and Burundi were incompatible
with the allegationsagiiinstRwanda.
3.60 It is also noticeable that the Declaration adopted by the Councilof ICAO on 10
March 1999 62contained no specific reference to the incidentat all, let alone any
suggestion that there rnight have been any violation of the Montreal Convention
by Rwanda, or that there might be a dispute between the Congo and Rwanda
concemingthe interpretationor applicationof the Convention.
3.61 Although the Councilstated thatthere was an obligationunder Article 3 bis of the
Chicago Convention to refiain fiom the use of weapons against civil aircraft in
flight, the onlymention of the MontrealConvention is the statement in paragraphs
5and 6:
5. The protection of civil aviation from acts of unlawful interference
has been enhanced by the Tokyo Convention (1963), the Hague
Convention (1970), the Montreal Convention (1971) and the 1988
61 SeeAnnexes 13 and 14.
62
Annex 1 6. Protocol Supplementaryto theMontreal Convention of 197 1,as well asby
Annex 17 to the Conventionon International Civil Aviation.
6. The Cotincil urges al1States in exercising their authority under the
Convention on International Civil Aviation and the aviation security
conventions to be guided by the principles, rules, standards and
recommended practices laid down in these Conventions and in the
Annexes to the Conventionon International Civil Aviation.
(emphasis added)
A statement at this level of generality (a) does not involve any endorsement
whatever of the Congolese allegation;(b) does not involve any condemnation of
any specific State, and (c) lends no supportto the claim that there existsa dispute
regarding the interpretation or application of thentreal Convention.
3.62 Indeed,the Council's statementdoes not appear to address the Congo's allegation
at all. Whatever the Rwandese troops might(or might not) have done to support
the anonymous Congolese rebelswho allegedly shot down a plane in the Congo,
those troops were not exercising any "authority under the Convention on
International Civil Aviation and the aviation security conventions". The Council
addressed its resolutioil (using the terms "urges" and "guided") to al1 States. It
may be inferred that it was embarrassedby the complete lack of specificity of the
Congolese complaint and wished simply to reaffirm existing aviation standards
for al1States, so that the matter could be declared closed. The Council took no
further action of any sort. Its conduct here is in marked contrast to its
consideration of caseswhere a State was credibly alleged to have been involvedin
aggressionagainst civilianaircraftand a real dispute did exist.
3.63 This is not, therefore, a case in which "the claim of one party is positively
opposed by the ~ther".~~ Despite the opportunity of the ICA0 debate and the
specific requirements of Article 14 of the Montreal Convention, the Congo has
not set out its claim with sufficientparticularity for Rwanda to be able to oppose
63 South WestAfrica casepara3.28,above. it. It has accordingly not satisfied the requirements for establishing the
jurisdiction of the Coui-tunderArticle 14(1)of the Montreal Conventi~n.~
3.64 Even if there existed between the Congo and Rwanda a dispute regarding the
interpretation or application of the Montreal Convention, the Congo must still
establish that the procedural requirementsof Article 14(1)of the Convention have
been met. It cannot do so now, anymore than it could in the earlier proceedings.
3.65 The first such requirernent is that the dispute is one which cannot be settled by
negotiation. The Congo has failed to show that that is the case. Although the
Congo has referred to the alleged impossibility of negotiating a peaceful
settlement with Rwand.a,the Congohashere confused the settlement of the anned
conflict, the nub of the allegation it makes, with the settlement of the specific
dispute which it asserts exists under the Montreal Convention. The reality is that
the Congo has made no attemptto negotiate with Rwandaon the allegations about
the destruction of the 13oeing 727. It has not lacked opportunity to do so. In the
three and a half years which elapsedbetween the alleged incident of 9 October
1998 and the filing of the current Application, representatives of the two
govemments have mei:on numerous occasions. At none of these meetings was
the question of an alleged breach of the Montreal Convention raised. Inaddition,
the Congo has addressed the United Nations Security Council, the General
Assembly and the Human Rights Commission about the conflict without ever
mentioning either the Montreal Convention or the alleged incident at Kindu.
There have also been numerous opportunities for the Congo to raise this issue
bilaterally or in a multilateralforum. Ithas not done so.
61 Conceivably the Congomight,in itsObservationson thesePreliminaryObjections, seekto specify
and particularise the allegationsit makeswhichareo raiseissuesunderthe MontrealConvention. But
it is one thingto provide further detail in respect ofan allegationsufficiently pleadedin advanceso as to
raisean issue underArticl14,and anothertotrto repairfatal defectsin a pleading enrevanche. Having
regard to the tems of Article 14, .:helatter courseis not open to the Congo in respect of the Montreal
Convention. This Court's jurisdic:tionunder the Conventioncannot be attracted solely by particulars
provided only in the course of subsequent pleadings,if the Application itself fails to raise a specific
allegation whichenlivens theCourt'sjurisdiction.3.66 Nor does the fact that the Congo raised thismatter with ICAO alter the fact that it
has made no attempt to settle its alleged dispute by negotiation. The Congo is, of
course, entitled to raise whatever issues itchooses in ICAO. However, ICAO was
not, in this instance, a forum for negotiations. The Congo did not use the
occasion of the ICA01discussion of its complaint against Rwanda to propose
bilateral negotiations or to suggesta negotiated settlement of any kind. Instead,it
used ICAOas a forum in which to make a complaint against Rwanda. It did not
invoke the ICAO dispute settlement mechanism, asit had done on a previous
occasion when an airci-aftwas allegedly shot down in 1991.~~As has been seen,
the Council of ICAO neither established thefacts nor identified a disputebetween
the Congo and Rwanda conceming the applicationof the Montreal Convention.
Itsresolution was in th(=most anodyneterms.
3.67 It is true that in the Lo,:kerbiecase, the Court held that the dispute between Libya
and the United Kingdom could not be settledby negotiation, even though thetwo
countries had not helil negotiations on the ~ubject.~~ As the Court expressly
noted, however, inthat case theUnited Kingdomhad:
...always maiiitainedthat the destruction of the Pan Am aircraft did not
give rise to anj. dispute between the Parties regarding the interpretation or
application of .theMontreal Convention, and that, for that reason, in the
[United Kingdom's] view, there was nothing to be settled by negotiation
under the onv vent ion.^^
That is not the case here. Rwandahas atno time rejected negotiations.
3.68 Article 14(1) of the Montreal Convention makes the jurisdiction of the Court
contingent upon (a) orle of the parties to the dispute having requested arbitration
65 SeeAnnexes13, 14 and 15.
66 Libya v. UnitedKingdom,ICJ Reports,1998,p. 3at para. 2;Libya v.United Statesof America,
ICJReports,1998,p. 1 15at para. 20.
67
Libya v. UnitedKingdom,ICJ Reports,1998,p. 3 at para.'2;Libya v. United States of America,
ICJReports,1998,p. 115at para.20. and (b) the Parties havingbeen unable, within a six month period, to agree upon
the organization of thearbitration.
3.69 In the present case, the Congo has never suggested, either in bilateral
communications, in ICAO, or beforeany other multilateral body that the dispute
be referred to arbitration. It is apparent, therefore, that another essential
requirementof Article 14(1)has not beensatisfied.
3.70 Once again, the facts of the present case are markedly different from those of the
Lockerbie case. In thai:case, the conclusionof the Court that the dispute wasnot
one which couldbe recrrredto arbitrationunder the Convention was basedupon a
finding that Libya had wntten to the United Kingdom and the United States of
America requesting arl~itrationunder the Convention and had received no reply.
Moreover, the ~WO States had made clear,in the course of debates in the Security
Council, that they had no intention of agreeing to arbitrati~n.~' In the present
case, there was no request for arbitrationby the Congo and nothing in the conduct
of Rwanda could beportrayedas a rejectionof arbitration, in contrast to the stance
adoptedby the Respondentsin theLockerbiecases.
3.71 It follows that the rrquirements set out in Article 14(1) of the Montreal
Convention have not t~eenmet. Those requirements may be procedural but they
are not formalities. They areessentialpreconditions to the creation ofjurisdiction
for the Court. The Congo's failureto satisfi them means that Article 14(1) --
which could, in any event, have conferredjurisdiction only in respect of a very
small part of the Application -- does not provide a basis for the jurisdiction of the
Court over any part of the Application.
68
Libya v. United KingdomICJ Reports, 1998,3.at para. 21 ; LibyUnitedStatesofArnerica,
ICJ Reports, 1998,p. 115 at p20.. I. Jus CogensNorms and the ViennaConvention on theLaw of Treaties
3.72 Finally,the Congo asserts that the rules ofjus cogens which it accuses Rwandaof
violating themselves provide a basis for the jurisdiction of the Court. The
Congo's reliance on this conceptis wholly misplaced. It ignores the principle -
consistently emphasised in the jurisprudence of the Court - that the Court's
jurisdiction is based e:cclusivelyupon consent. That principle was emphasised
most recently in the Cases concerning Legality of Use of Force, cases which
involved allegations of'violation of jus cogens rules. The Court there statedthat
...the Court (;an [therefore] 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. 69
3.73 One consequence ofthiitprinciple, as the Courtstated in the same case, is that-
There is a fundamental distinction betweenthe 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 latterquestion
can only be rei~chedwhen the Court deals with the merits after having
established its jurisdiction and having heard full legal arguments by both
parties. 'O
The fact that the nom .whicha State is accusedof having violated has thestatusof
jus cogens does not alter that distinction. In particular, it does not act as a
substitute for the consent of the Respondent State, so as to create jurisdiction
wherenone would othc:rwiseexist.
3.74 Nor is the Court given jurisdiction over a Statebecause the nom which that State
is accused of violating creates obligations erga omnes. As the Court stated in the
69 Case concerning Legality.?fUseof Force (Yugoslaviav. Belgium), ICJ Reports, 199p. 124,
para20.
70
ibid.para.47. East Timordecision, "i:heerga omnescharacter of a nom and the rule of consent
tojurisdiction are two differentthings". 71
3.75 In an attempt to circuinvent these very clear statements of principle, the Congo
refers to Article 66 ofthe Vienna Convention on the Lawof Treaties, 1969. That
provision, however, has no bearing on the present case. Contrary to what the
Congolese Application and Request suggest, Article66 does not provide for g
dispute regarding cont~aventionof a rule ofjus cogens to be referred to the Court.
On the contrary, as the Court held in its Order of 10 July 2002, Article 66 is
concerned with a very:;pecifickind of dispute regardingone effect of noms ofjus
cogens.''
3.76 Article 66 is part ancl parce1 of the machinery for the settlement of disputes
regarding the interpret~~tionnd applicationof the Vienna Convention. It provides
for the jurisdiction of i:heCourt only in respect of disputes regarding the validity
of a treaty which is said to contravene a rule ofjus 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 noms of jus
cogens to which theCc~ngo refers.
3.77 It is therefore submittetdthat none of the grounds of jurisdiction relied onby the
Congo affords a genui.nebasis for the jurisdiction of the Court to entertain the
Application of the Congo.
71 Case concerningEast TimcrICJReports, 1995,p.90, para 29.
72
Order of 1July2002,para.75. PARTIV
ADMISSIBILITY
4.1 Even if the Court had jurisdiction, Rwanda maintains thatthe present Application
is inadmissible.
4.2 The new Application filed by the Congo is in substance largely a repetition of its
1999 Application. A c;omparisonof the two applications demonstrates thatthe
Congo has done little l~eyondadding a few further allegations and referencesto
selected events which c~ccurre, r are said to have occurred, in the two anda half
years since th1999 Application was filed.
4.3 While the Congo has added a number of new grounds on which it seeks to
establish the jurisdiction of the Couthese do not, for the reasons given in Part
In, succeed in doing so. Moreover, the Congo hasmade virtually no attempt to
link the allegations in its Statement of Facts and list of alleged violations of
international law to th(: treaties on which it attempts to found jurisdiction. The
references to the Torture Convention and the Montreal Convention are
substantially unchanged, notwithstanding that the Congo chose to discontinue the
earlier proceedings in circumstances which implicitly acknowledged thelack of
jurisdiction underthose:instruments.
4.4 Rwanda maintains that theremust be some finalityto litigation. For a State to file
an application, withdriiw it in the face of objections to the jurisdiction of the
Court, then seek to bring a fresh application two years later against the same
respondent and based on the same allegations is an abuse of the process of the
Court and renders the Application inadmissible. PART V
CONC1,USIONS AND SUBMISSIONS
5.1 For the reasons given in PIIIof this Memorial, Rwandacontends that the Court
lacksjurisdiction to entertain the Applicationof the Congo. Of the eight bases for
junsdiction advancedby the Congo -
the Torture Convention is not in force between Rwanda and the
(1)
Congo and thus cannot be a basis for jurisdiction in proceedings
behveerithem;
(2) jurisdiction under the Racial Discrimination Convention and the
GenocitleConventionis excludedby Rwanda's reservations;
(3) principles of jus cogens and the provisions of the Vienna
Convention on the Law of Treaties cannot afford a basis for the
jurisdiction of the Courtin the present case whichnot concem
the valiiity of a treaty;
(4) the WHO Statute and the UNESCO Constitution, though in force
betweeii Rwanda and the Congo have nothing to do with the
present case and the procedural requirementsfor seising the Court
under tlioseinstrumentshave not been followed;and
the Corigohas failed to comply with the preconditions for seising
(5)
the Cotirtunder the CEDAW andthe Montreal Convention.
5.2 Altematively, the present Application is inadmissibleas it is an attempt to revive
the earlier proceedings.which theCongochose to discontinue.
5.3 Accordingly, Rwanda requests the Court to adjudge anddeclare -hat The Court 1ac:ks jurisdiction to entertain the claims broughtby the
Democratic Republicof the Congo. In addition,the claims brought
by theDemociraticRepublicof the Congoareinadmissible.
16January2003 Christopher Greenwood IList of Annexes
Annex Titleand Reference
Number
1 Convention Against Torture and other Cruel,Inhuman and Degrading Treatment
or Punishment, 1984("the Torture Convention")
2 Convention on the Elimination of al1Forms of Racial Discrimination, 1965("the
Racial Discrimination Convention")
3 Convention on the Prevention and Punishment ofthe Cnme of Genocide, 1948
("the Genocideo~ivention")
4 Convention on the Elimination of al1 Forms of Discrimination against Women,
1979("CEDAW")
5 Statute of the Worl~iHealth Organization
6 Constitution of UNESCO
7 Montreal Conventi~n for the Suppression of Unlawful Acts againstthe Safety of
Civil Aviation, 1971("thetreal Convention")
8 Extract from the Vienna Conventionon the Law of Treaties, 1969, Articles 65-67
("the Vienna Convc:ntionV)
9 Extract fromUN Treaty Collection: Reservations to the Racial Discrimination
Convention and Genocide Convention
1O Extract from UNESCO Rules of Procedure11 Pretoria Peace4greement,(UnitedNations Document Sl20021914)
12 UN Security Council Resolution 1445 (2002)
13 International C:Ll viation OrganizationDocument, (PRESAW639)
AttachmentA
Letter from Millisterof Transport andCommunications of Congo
to the President of the Council of ICAO (9 October 1998)
AttachmentB
Letter from the President of the Council of ICAO to the Minister of
Transport and(:ommunications of Congo (3November 1998)
Attachment C
Letter from Mi:nisterof Transport andCommunications of Congo to the
President ofhe Council of ICAO (20December 1998)
AttachmentD
Letter from the:Embassy of the Congo to the President of the Councilof
ICAO (2 February 1999)
Attachment E
Letter fromthe Minister of Transport and Communication of Congo to the
President of tht:Council of ICAO (2February 1999)
14 International Civil Aviation Organization Council Minute, (C-MIN15619)
15 International Civil Aviation Organization Council Record ofting,
lothMarch 1999,(C-DEC 15619)
16 International Civil Aviation Organization Council Declaration adoptedat
the gtMeeting lothMarch 1999
Memorial of Rwanda