Armed activities on the territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) - Jurisdiction of the Court and Admissibility of the Application - The Court finds t

INTERNATIONAL COURT OF WSTICE

Peace Palace, 2517 KJ The Hague. Tel: +31 (0)70 302 23 23. Cables: Intercourt,
The Hague. Fax: +31 (0)70 364 99 28. Telex: 32323. E-mail address:

[email protected]. Internet address: http://www.icj-cij.org.

Press Release
Unofficial

No. 2006/4
3 February 2006

Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratie Republic of the Congo v. Rwanda)

Jurisdiction of the Court and Admissibility of the Application

The Court finds that it bas no jurisdiction to entertain the Application
filedby the Democratie Republic of the Congo

THE HAGUE, 3 February 2006. The International Court of Justice (ICJ), principal judicial
organ of the United Nations, today rendered its Judgment on its jurisdiction and on the
admissibility of the Application in the case concerning Armed Activities on the Territory of the
Congo (New Application: 2002) (Democratie Republic of the Congo v. Rwanda).

In its Judgment, the Court

"By fifteen votes to two,

Finds that it has no jurisdiction to entertain the Application filed by the Democratie Republic
of the Congo on 28 May 2002.

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Vereshchetin, Higgins,
Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada,
Simma, Tomka, Abraham; Judge ad hoc Dugard;

AGAINST: Judge Koroma; Judge ad hoc Mavungu."

Reasoning of the Court

The Court notes first of ali that it cannat consider any matter relating to the merits of the

dispute between the Democratie Republic of the Congo (DRC) and Rwanda. It points out that, in
accordance with the decision taken in its Order of 18 September 2002, it is required to address only
the questions of whether it is competent to hear the dispute and whether the DRC's Application is
admissible.

The Court conducts its examination of the 11 bases of jurisdiction put forward by the DRC

and reaches the following conclusions: - 2 -

(1) 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (Art. 30, para. 1)

The Court notes the fact that Rwandais not and never has been party to this Convention and
finds that the DRC cannat rely upon this instrument as a basis of jurisdiction.

(2) 1947 Convention on the Privileges and Immunities ofthe Specialized Agencies (Art. 9)

As the DRC did not seek to invoke this Convention in the present phase of the proceedings,

the Court decides not to take it into consideration in its Judgment.

(3) Forum prorogatum

The Court rejects the DRC's argument that, by parttctpating in every stage of the
proceedings, Rwanda accepted the Court's jurisdiction in the case. It observes that Rwanda's
participation in the proceedings cannat be interpreted as consent to the Court's jurisdiction,

inasmuch as the very purpose of the participation was to challenge that jurisdiction.

(4) Order of 10July 2002 concerning the indication of provisional measures

The Court rejects the suggestion that it implicitly found that it had jurisdiction to hear the
case on the merits when it refused to remove the case from the List at the provisional measures
stage. It recalls that in the Order of 10July 2002 it justified its refusai to indicate provisional

measures by the lack of prima facie jurisdiction and maintained the case on the List solely for the
purpose of exarnining further the question of its jurisdiction.

(5) Convention on the Prevention and Punishment of the Crime of Genocide (Art. IX)

The Court notes that both States are parties to this Convention. It adds that Rwanda entered
a reservation by which it sought to exclude the jurisdiction of the Court under Article IX of the
Convention, which provides that "[d]isputes between the Contracting Parties relating to the

interpretation, application or fulfilment of the ... Convention" shall be submitted to the Court.

The Court observes that the DRC argued in the proceedings that Rwanda had withdrawn the
reservation, citing in support of this a décret-loi of 15 February 1995 by which Rwanda allegedly

intended to withdraw ali reservations it had entered in respect of the accession, approval and
ratification of international human rights instruments, as weil as a statement made on
17 March 2005 by the Minister of Justice of Rwanda at the Sixty-First Session of the United
Nations Commission on Human Rights. The DRC also disputed the validity of Rwanda's

reservation.

In respect of the décret-loi of 15 February 1995, the Court finds that it has not been shown
that Rwanda notified the withdrawal of its reservations to the other States parties to the

"international instruments" referred to in Article 1 of the décret-loi, and in particular to the States
parties to the Genocide Convention. Nor has it been shown that there was any agreement whereby
such withdrawal could have become operative without notification. In the Court's view, the
adoption of the décret-loi and its publication in the Official Journal of the Rwandese Republic

cannat in themselves amount to such notification. In order to have effect in international law, the
withdrawal would have had to be the subject of a notice received at the international leve!. - 3 -

In respect of the statement by the Minister of Justice of Rwanda that the "few [human rights]

instruments not yet ratified" by Rwanda at that date "will shortly be ratified" and reservations "not
yet withdrawn will shortly be withdrawn", the Court finds that it is not sufficiently specifie in
relation to the particular question of the withdrawal of reservations. The statement cannat therefore
be considered as confirmation by Rwanda of a previous decision to withdraw its reservation to

Article IX of the Genocide Convention, or as any sort of unilateral commitment on its part having
legal effects in regard to such withdrawal.

The Court then considers the DRC's argument that Rwanda's reservation is invalid on the

ground that the Genocide Convention contains peremptory norms (jus cogens) binding on ali
States. In this regard, the Court states that the rights and obligations enshrined by the Convention
are rights and obligations erga omnes (effective in regard to all others), but that the mere fact that
these rights and obligations may be at issue in a dispute would not give the Court jurisdiction to

entertain that dispute. The Court notes that the same applies to peremptory norms of general
international law. Under the Court's Statute jurisdiction is always based on the consent of the
parties. The Court adds that the reservation is not incompatible with the abject and purpose of the
Convention.

The Court concludes from the foregoing that the Genocide Convention cannat constitute a
basis of jurisdiction in the present case.

(6) 1965 International Convention on the Elimination of Ali Forms of Racial Discrimination
(Art. 22)

The Court notes that the DRC and Rwanda are parties to the Convention but that Rwanda
has entered a reservation to Article 22, which gives the Court jurisdiction to hear disputes between
States parties with respect to the interpretation or application of the Convention. It observes that
Article 20, paragraph 3, of the Convention states: "Reservations may be withdrawn at any time by

notification to this effect addressed to the Secretary-General" of the United Nations. The Court
notes that there is, however, no evidence before it of any notification of withdrawal of this
reservation. The Court adds that the reservation is not incompatible with the Convention's abject
and purpose and that it is not in conflict with a peremptory norm of general international law. On

this point the Court refers to its reasoning when dismissing a similar argument in regard to
Rwanda's reservation to Article IX of the Genocide Convention. The Court concludes that the
Convention on Racial Discrimination cannat found its jurisdiction.

(7) 1979 International Convention on the Elimination of Ali Forms of Discrimination Against
Women (Art. 29, para. 1)

The Court notes that both States are parties to the Convention. It adds that Article 29,
paragraph 1, of the Convention gives the Courtjurisdiction in respect of any dispute between States
parties concerning its interpretation or application. States must however attempt to settle a dispute
first by negotiation and then through arbitration before turning to the Court. The Court considers

whether in this case there exists a dispute between the Parties concerning the interpretation or
application of the Convention which could not have been settled by negotiation. It states that the
evidence has not satisfied it that the DRC sought to commence negotiations in respect of the
interpretation or applicationof the Convention. It adds that the DRC has also failed to prove that it

made a proposai to Rwanda that arbitration proceedings should be organized, and that the latter
failed to respond thereto. The Court accordingly rejects this basis of jurisdiction. -4 -

(8) 1946 Constitution of the World Health Organization (WHO) (Art. 75)

The Court observes that both the DRC and Rwanda are parties to the WHO Constitution. It
adds that Article 75 of the WHO Constitution, which provides for the Court's jurisdiction over
questions or disputes between Member States, requires that such questions or disputes must

concern the interpretation or application of the Constitution. In the Court's view, that is not the
case in the present proceedings and, even if it were, the DRC has not proved that the other
preconditions for seisin of the Court have been satisfied. The WHO Constitution cannat therefore
be accepted as a basis of jurisdiction.

(9) Unesco Constitution (Art. XN, para. 2)

After noting that both States are parties to the Unesco Constitution, the Court observes that

Article XN, paragraph 2, of the instrument provides for the referral of disputes, but only in respect
of the interpretation of the Constitution. The Court finds that such is not the abject of the DRC's
Application. As, moreover, the prior procedure for seisin of the Court was not followed, the Court
rejects this basis of jurisdiction.

(10) 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation (Art. 14, para. 1)

The Court notes that the DRC and Rwanda are parties to the Convention. It adds that
Article 14, paragraph 1, of the Convention gives the Court jurisdiction in respect of any dispute
between Contracting States concerning the interpretation or application of the Convention. States
must however attempt to settle a dispute first by negotiation and then through arbitration before

turning to the Court. The Court finds that the DRC has failed to show that it satisfied these
conditions and accordingly concludes that the Convention cannat found its jurisdiction.

(11) 1969 Vienna Convention on the Law of Treaties (Art. 66)

The Court first notes that Article 4 of the Convention, to which the DRC and Rwanda are
parties, provides that the Convention applies only to treaties which are concluded by States after its
entry into force with regard to such States. The Vienna Convention did not enter into force

between the DRC and Rwanda until 3 February 1980, i.e., after the Conventions on Genocide and
Racial Discrimination were concluded. Thus, states the Court, the rules contained in the Vienna
Convention are not applicable, save in so far as they are declaratory of customary international law.
The Court considers that the rules contained in Article 66 of the Convention (pursuant to which the

Court may hear disputes relating to conflicts between treaties and peremptory norms of general
international law) are not of this character. Nor have the two Parties otherwise agreed to apply
Article 66 between themselves.

Further, the Court recalls that the mere fact that rights and obligations erga omnes or
peremptory norms of general international law (jus cogens) are at issue in a dispute cannat in itself
constitute an exception to the principle that its jurisdiction always depends on the consent of the
parties.

* - 5 -

Having concluded that none of the bases of jurisdiction put forward by the DRC can be
upheld and that it therefore has no jurisdiction to entertain the Application, the Court is not

required to rule on the admissibility of the Application. It adds that it is precluded by its Statute
from taking any position on the merits of the daims made by the DRC. However, the Court wishes
to reiterate that there is a fundamental distinction between the acceptance by States of the Court's
jurisdiction and the conformity of their acts with international law. Whether or not States have

accepted the jurisdiction of the Court, they are required to fulfil their obligations under the United
Nations Charter and the other rules of international law, including international humanitarian and
human rights law, and they remain responsible for acts attributable to them which are contrary to
international law.

Composition of the Court

The Court was composed as follows: President Shi; Vice-President Ranjeva;
Judges Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham; Judges ad hoc Dugard, Mavungu;
Registrar Couvreur.

Judge Koroma appends a dissenting opinion to the Judgment of the Court; Judges Higgins,
Kooijmans, Elaraby, Owada and Simma append a joint separate opinion to the Judgment of the
Court; Judge Kooijmans appends a declaration to the Judgment of the Court;
Judge Al-Khasawneh appends a separate opinion to the Judgment of the Court; Judge Elaraby

appends a declaration to the Judgment of the Court; Judge ad hoc Dugard appends a separate
opinion to the Judgment of the Court; Judge ad hoc Mavungu appends a dissenting opinion to the
Judgment of the Court.

A summary of the Judgment is published in the document entitled "Summary No. 2006/1",

to which summaries of the declarations and opinions attached to the Judgment are annexed. The
present Press Release, the summary and the full text of the Judgment also appear on the Court's
website (www.icj-cij.org) under the "Docket" and "Decisions" headings.

Information Department:
Mrs. Laurence Blairon, Head of Department ( + 31 70 302 23 36)
Mr. Boris Heim and Mr. Maxime Schouppe, Information Officers ( + 31 70 302 23 37)

E-mail address: information @icj-cij.org