INTERNATIONAL COURT OF JUSTICE
2006
General List
No.34
APPLICATION
INSTITUTING PROCEEDINGS
CONCERNING
VIOLATION OF RULES CONCERNING
DIPLOMATIC RELATIONS
(COMMONWEALTH OF DOMINICA v. SWITZERLAND)
___________ TABLE OF CONTENTS
Application of the Commonwealth of Dominica............................................................................... 1
I. Letter to the Court...................................................................................................................... 1
II. Summary statement of facts ..................................................................................................... 1
III. Jurisdiction of the Court.......................................................................................................... 3
IV. Judgment requested................................................................................................................. 4
V. Conclusions.............................................................................................................................. 6 A PPLICATION OF THE C OMMONWEALTH OF DOMINICA
26 April 2006
I. Letter to the Court
Mr. Philippe Couvreur
The Registrar
International Court of Justice
Peace Palace
The Hague
Netherlands
Sir,
As duly authorized by the Commonwealth of Dominica I have the honour to enclose the
Application on behalf of the Commonwealth of Dominica instituting proceedings against
Switzerland.
I refer to the recent declaration by the Appli cants and to the longstanding declaration of the
Respondents under the Optional Protocol under Article 36 (2) of the Statute of the Court as well as
to declarations by the Applicants and the Res pondents under the Optional Protocol to the Vienna
Convention on Diplomatic Relations of 18April 1961, concerning the Compulsory Settlement of
Disputes of 18 April 1961.
Under the jurisdiction conferred by these instruments upon the Court, and in accordance with
Article 36 (1) and Article 40 (1) of the Statute of the Court and Article 38 of the Rules of Court, I
hereby submit on behalf of the Commonwealth of Dominica, an Application instituting
proceedings against Switzerland for violations of the Vienna Convention on Diplomatic Relations
of 18April1961 (hereinafter referred to as theVienna Convention), the Headquarters Agreement
between Switzerland and the United Nations of 11 June and 1 July 1946, the Agreement on
Privileges and Immunities of the United Nations between Switzerland and the United Nations of
11April1946, the Convention on Privileges and Immunities of the United Nations of
13February1946 as well as general well-established rules and principles of international law on
appointment and withdrawal of diplomats, on di plomatic immunity, on equality of States and on
the rights of the United Nations of passive legation.
II. Summary statement of facts
1. This Statement of Facts, as expanded in the Memorial and further submissions of the
Applicants, will establish that the Commonwealth of Dominica, the Applicants, have been
submitted to infringements of their sovereignty bythe Respondents in so far as the Respondents
have claimed the right to “withdraw the accredita tion” of a diplomatic Envoy of Dominica to the
United Nations in Geneva stating that this Envoy is a “businessman” and as such he would have no
right to be a diplomat.
2. At no stage have the Respondents claimed that the said Envoy has violated any laws or
regulations of the host State, nor that he has posed any threats to national security.
3. At no stage have the Respondents claimed that the Envoy had any commercial activities in
Switzerland but the Respondents have, by what appears to the Applicants as a wrongful - 2 -
interpretation of Article42 of th e Vienna Convention, claimed that a diplomat cannot engage in
commercial activities anywhere, even outside the host country.
4. The Envoy of the Applicants was thus denied the right to remain in Switzerland as a
diplomat. The Respondents furthermore denied him the usual privileges of a diplomat and in other
ways treated the Envoy in ways that do not conf orm with rules on diplomatic immunity and the
respect to be afforded to an envoy of a sovereign State.
5. The Respondents have, in particular, sought to exercise powers which they do not have
under international law and have usurped rights of withdrawal of accreditation that rightly belong
to the sending State and to the United Nations, the organization to which our Envoy was accredited.
6. The said infringements violate the aforementioned Vienna Convention on Diplomatic
Relations, numerous other treaties such as the aforementioned Headquarters Agreement between
Switzerland and the United Nations, the Agre ement on Privileges and Immunities between
Switzerland the United Nations, the multilateral C onvention on Privileges and Immunities of the
United Nations, as well as general well-established rules and principles of international law.
7. The Applicants sent as their Envoy Mr. RomanLakschin, (hereafter “the Envoy”), a
citizen of Dominica born in Russia, to the United Nations and the Specialized Agencies and to the
World Trade Organization in Switzerland in 1 996. The Envoy was accredited to the United
Nations and the Specialized Agencies and to the WTO on 15March1996 with effect as from
1March1996 as Counsellor to the Mission of the Commonwealth of Dominica at the United
Nations and the Specialized Agencies in Geneva. This accreditation was thus effected to the
organizations and not to Switzerland.
8. For a considerable time, the Respondents di d not afford the Envoy of the Applicants the
rights and privileges and immunities to which he was entitled to under numerous rules, treaties and
conventions and under general customary rules on diplomatic privileges and immunities. The
Applicants will set out the facts in this respect in greater detail in their Memorial.
9. The Respondents announced a unilateral “w ithdrawal” of the Envoy at the end of 1996
when they notified the Envoy, in December 1996, that he could no longer act as diplomat at the
United Nations as he was also a “businessman”. He was given until February1997 to leave his
post.
10. The privileges of the Counsellor were how ever restored and his appointment renewed,
and even put at a higher level of a Chargé d’affaires, making him de facto Head of Mission, as
from 12 March 1997 after the intervention of the Applicants, the Government of the sending State,
with the Government of Switzerland. The Applican ts underlined in this context that their Envoy
was accredited to the United Nations and the Sp ecialized Agencies and the WTO in Geneva and
not to Switzerland, the Respondents. The new appoi ntment of the Envoy Chargé d’affaires was to
last until July1997 but on 15May1997 the Ap plicants appointed the Envoy to be Deputy
Permanent Representative with the rank of Ambassador.
11. The Respondents again decided to unilatera lly “withdraw” the Envoy’s diplomatic status
at the end of the following year on 11Novemb er1998 after the Swiss authorities again claimed
that the Envoy was a “businessman” . In such capacity he was, they claimed, not entitled to be a
diplomat at the United Nations, the Specialized Ag encies and the WTO in Geneva in Switzerland.
It would, in the opinion of the Respondents, be contrary to the Vienna Convention for a diplomat to
conduct business anywhere, even outside the host country, Switzerland.
12. The Respondents thus claim that they have a right, under Article42 of the Vienna
Convention, as a host State, to withdraw the accreditation of an envoy sent by a Member of the
United Nations to a Permanent Mission at the United Nations in Geneva, even in a case where there
eDOS_Application_20060426_final_09p (3).doc - 3 -
is no allegation that the laws of the host State ha ve been violated and where there is no allegation
that the national security of the host State is at risk. The Respondents thus claim they have a right,
under Article 42 of the Vienna Convention, to “with draw” the diplomatic status of a person who is
a “businessman” even if that person is not en gaged in any commercial activity in the said host
State.
13. The Applicants do not share this interp retation of the Vienna Convention and requests
the Court to decide and clarify whether the rights of a sovereign nation to select its envoys to the
United Nations can be impaired by a host State a nd whether the host State can even withdraw the
accreditation of an Acting Head of Mission claimi ng that an envoy is engaged in commercial
activities outside the host State , and whether such change of diplomatic status can take place
without even notifying, neither the sending State nor the United Nations.
14. A legal dispute now exists between the A pplicants and the Respondents with regard to
the right, claimed by the Respondents, to terminate an appointment of a Head of Mission of the
Applicants, a diplomat accredited to the United Nations and the Specialized Agencies and to the
WTO but not accredited to the host State.
15. The Applicants further contest that such ri ght exists with regard to an Acting Head of
Mission in the absence of consultation and notification of both the sending State and the United
Nations.
16. The Applicants reserve the right to submit further arguments.
III. Jurisdiction of the Court
17. As a Member of the United Nations Organization, the Commonwealth of Dominica is, by
succession in 1987, a party to the Statute, which fo rms an integral part of the Charter. The
Respondents, Switzerland, are now, since 2004, a Me mber of the United Nations but adhered long
before this, on 28 July 1948, to the Statute of the International Court of Justice.
18. The Respondents, Switzerland, accepted the compulsory jurisdiction of the Court under
Article 36 (2) of the Statute of the International Court of Justice by a declaration on 28 July 1948.
19. The Applicants, the Commonwealth of Dominica, has accepted the compulsory
jurisdiction of the Court under Article 36 (2) of the Statute of the International Court of Justice by a
declaration signed on 17March2006. This declara tion has been filed with the Secretary-General
of the United Nations and communicated to the Court.
20. The Applicants and the Respondents are also both parties to the Vienna Convention,
which has been continuously in force with respect to both Contracting Parties throughout the period
of time relevant to this case.
21. The Respondents, Switzerland, signed th e Vienna Convention on 18April1961 and
deposited an instrument of ratification without reservation on 20 October 1963.
22. The Respondents signed the Optional Protocol to the Vienna Convention for the
Compulsory Settlement of Disputes on 18April1961 and proceeded to ratification on
22 November 1963.
23. The Applicants, the Commonwealth of Do minica, succeeded to the Vienna Convention
on 24 November 1987.
eDOS_Application_20060426_final_09p (3).doc - 4 -
24. The Applicants adhered to the Optional Protocol of the Vienna Convention for the
Settlement of Disputes on 17March2006 and the decl aration of the Applicants to this effect
became effective on 24 April 2006.
25. Article 1 of the Optional Protocol to the Vienna Convention provides as follows:
“Disputes arising out of the interpretation or application of the Convention shall
lie within the compulsory jurisdiction of the International Court of Justice and may
accordingly be brought before the Court by an application made by any party to the
dispute being a Party to the present Protocol.”
26. The claims of the Applicants involve questions of interpretation of the Vienna
Convention that clearly falls within the powers, competence, and mandate of the Court as “the
principal judicial organ of the United Nations” as established by Charter Article 92.
27. The Applicants respectfully request the Cour t to affirm and to clarify the right of a State
to appoint the envoys it considers appropriate as representatives in the United Nations network and
retain such representatives without the host State intervening to remove such envoys. In particular,
the Applicants respectfully ask the Court to cl arify whether a host State, without any further
support in bilateral or multilateral agreements, can claim the right to “withdraw the accreditation”
of an envoy of a State to the United Nations in si tuations where the national laws of the host State
or binding provisions of international law have not been violated by the said envoy. As such an
envoy is accredited to the United Nations and not to the host State, excessive claims of the host
State to control, vet and withdraw would seem to usurp the powers of both the United Nations and
those of the sending State.
28. At the moment, there is a grey area of in ternational law with respect to the powers and
duties of a host State vis-à-vis a sending State and its envoys and vis-à-vis an international
organization. The Vienna Convention is applied tothese situations only by analogy and with a proviso
of mutatis mutandis. Nor is there any clear guidance in other relevant agreements such as in the
Headquarters Agreement of 1946, the Agreement on Privileges and Immunities of Switzerland and
the United Nations of 1946 or in the United Na tions Convention on Privile ges and Immunities of
1946.
29. It is in the interest of international law th at there is a clarification of the competence of a
host State, a sending State and the competence of an international organization, especially of the
competence of the United Nations to which envoys are accredited.
30. In light of the facts described above, and as will be more fully developed in subsequent
submissions, it is clear that a legal dispute ex ists between the Commonwealth of Dominica and
Switzerland “relating to the interpretation or a pplication of the [Vienna] Convention” as well as
regards interpretation and application of general rules of interna tional law on diplomatic immunity
and privilege, on equality of States and on the rule of non-discrimination in international society.
31. For these reasons, the Applicants submit that the Court has jurisdiction to hear its claims
against the Respondents for matters arisi ng under the Vienna Convention, under the
aforementioned other treaties and Conventions and under general international law.
IV. Judgment requested
32. Accordingly, while reserving the right to revise, supplement, expand or amend this
Application, and subject to the presentation to the Court of the relevant evidence and legal
arguments, the Commonwealth of Dominica requests the Court to
eDOS_Application_20060426_final_09p (3).doc - 5 -
(a) clarify the rights and duties of a host State, of a sending State and those of the United Nations,
the Specialized Agencies and the WTO, with regard to Permanent Missions and their
diplomatic personnel;
and further to adjudge and declare as follows:
(b)that the Respondents have breached, and are continuing to breach, their legal obligations
toward the Commonwealth of Dominica under Ar ticles23-47 of the Vienna Convention on
Diplomatic Relations of 18 April 1961, the Headquarters Agreement between the Respondents
and the United Nations of 11June and 1 July1946, the Agreement on Privileges and
Immunities between the Respondents and the United Nations of 11 April 1946, the multilateral
Convention on Privileges and Immunities of the United Nations of 13 February 1946 and under
general international law;
(c) that the Respondents, in breach of their ob ligations under the aforementioned treaties and
conventions as well as under gene ral and customary international law, have violated the
fundamental rules of immunity of diplomats;
(d) that the Respondents, in breach of their ob ligations under the aforementioned treaties and
conventions as well as under general and customary international law, in the event also failed to
recognize the rights under international law concerning active legation of the Applicants and on
passive legation of international organizations;
(e) that the Respondents, in breach of their ob ligations under the aforementioned treaties and
conventions as well as under gene ral and customary internationa l law, have violated rules
concerning their rights and duties as a host State;
(f) that the Respondents have violated and continue to violate relevant sections on sovereignty and
equality of the Declaration on Principles of International Law Friendly Relations and
Co-operation Among States in Accordance with the Charter of the United Nations of
24 October 1970, sections which also reflect binding general international law.
(g) that the Respondents have violated, and continue to violate, their solemn obligations under
Articles I (3), 55 and 56 of the United Nations Charter;
(h) that the Respondents, in breach of their obliga tions under general and customary international
law, have violated and are violating the sovere ignty of the Applicants, the Government of the
Commonwealth of Dominica, and the rights of its diplomatic Envoy;
(i) that the Respondents, in breach of their oblig ations under general and customary international
law, and under Article2(7) of the Charter of the United Nations, have intervened and are
intervening in the internal affairs of the Applicants, the Commonwealth of Dominica;
(j) that the Respondents and their agents and surrogates are under an obligation to cease and desist
immediately from their breaches of the foregoing legal obligations;
(k) that the Respondents have an obligation to pay the Applicants, the Commonwealth of
Dominica, in their own right and as parens patriae for their citizens, reparations for damages to
the trade and economy of the Applicants, th e Commonwealth of Dominica, caused by the
foregoing violations of international law in a sum to be determined by the Court. The
Applicants reserve the right to introduce to the Court a precise evaluation of the damages
caused by the Respondents.
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V. Conclusions
33. A small country like the Applicants, th e Commonwealth of Dominica, has the right to
send whichever envoy they consider appropriate to the United Nations in Geneva in their attempt to
better their tourism prospects and their economy. It is only by power that the Respondents could
refuse an envoy chosen by the Applicants. Un less the Applicants take recourse to judicial
procedures at the International C ourt of Justice, where all sovere ign countries have equal rights,
such power would prevail over the legal rights of an independent, albeit small, State.
34. The Respondents deprived the Applican ts of welcome and competent assistance in
establishing and running a Mission in Geneva and thereby impeded the efforts of the
Commonwealth of Dominica to develop trade and investment.
35. The Respondents cannot be allowed to use co lonial methods to control a small State like
Dominica which has a population of merely some 70,000 people and thus severely restrained in the
selection of foreign envoys. The Commonwealth of Dominica is, however, a sovereign State and
demands to have the same rights and privileges as a large State in international society.
36. It is not legally justified to allow the R espondents to dictate to the Applicants whom they
should send as an envoy to the United Nations or when such appointments would cease. The
Applicants take great exception to any other Stat e pretending to have the right to decide on the
diplomatic representation of the Applicants.
37. It is highly relevant to emphasize that the Head of Mission of the Applicants was
accredited to the United Nations and not to Swit zerland. The United Nations has not had any
complaint at all with regard to our Envoy nor was the sending State informed of the expulsion of
our diplomat from Switzerland but faced a fait accompli.
38. A host State cannot without specific authority usurp the powers of a receiving
organization and of the sending State to oust an envoy without consulting and conferring with the
organization which alone has the right of passive legation and consulting and conferring with the
sending State which has exercised its sovereign right of active legation.
___________
eDOS_Application_20060426_final_09p (3).doc The Government of the Commonwealth of Dominica has designated
the undersigned as its Agent for the purpose of these proceedings.
Dominica March 2006
Respectfsulmbit,d
(Signed) Ingrid Detter FRANKOPAN
Professor of International Law
Member of the Bar of England
Agent for the Commonwealth of Dominica
(Seal) Authenticated by the
Ministry for Foreign Affairs
___________
Application Instituting Proceedings