INTERNATIONAL COURT OF JUSTICE DISPUTE RELATING TO ALLEGATIONS OF GENOCIDE (Ukraine v Russian Federation) DECLARATION OF INTERVENTION PURSUANT TO ARTICLE 63 OF THE STATUTE OF THE COURT BY THE GOVERNMENT OF NEW ZEALAND To the Registrar, International Court of Justice. The undersigned being duly authorized by the Government of New Zealand. 1.
DECLARATION OF INTERVENTION OF THE REPUBLIC OF LITHUANIA INTERVENTION PURSUANT TO ARTICLE 63 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE 19 JULY 2022 To the Registrar of the International Court of Justice, the undersigned being duly authorized by the Government of the Republic of Lithuania: 1.
3 DECLARATION OF INTERVENTION OF THE REPUBLIC OF LATVIA Riga, 19 July 2022. A. INTERVENTION PURSUANT TO ARTICLE 63, PARAGRAPH 2, OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE To the Registrar of the International Court of Justice (“the Court”), the undersigned being duly authorized by the Government of the Republic of Latvia (“Latvia”): 1.
On 23 December 2008, the Federal Republic of Germany instituted proceedings against the Italian Republic, requesting the Court to declare that Italy had failed to respect the jurisdictional immunity which Germany enjoys under international law by allowing civil claims to be brought against it in the Italian courts seeking reparation for injuries caused by violations of international humanitarian law committed by the Third Reich during the Second World War. In addition, Germany asked the Court to find that Italy had also violated Germany’s immunity by taking measures of constraint against Villa Vigoni, German State property situated in Italian territory. Finally, Germany requested the Court to declare that Italy had breached Germany’s jurisdictional immunity by declaring enforceable in Italy decisions of Greek civil courts rendered against Germany on the basis of acts similar to those which had given rise to the claims brought before Italian courts. Germany referred in particular to the judgment rendered against it in respect of the massacre committed by German armed forces during their withdrawal in 1944, in the Greek village of Distomo in the Distomo case.
As basis for the Court’s jurisdiction, Germany invoked Article 1 of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957, ratified by Italy on 29 January 1960 and by Germany on 18 April 1961.
The Memorial of Germany and the Counter-Memorial of Italy were filed within the time-limits fixed by the Order of the Court of 29 April 2009. In its Counter-Memorial, Italy, referring to Article 80 of the Rules of Court, made a counter-claim “with respect to the question of the reparation owed to Italian victims of grave violations of international humanitarian law committed by forces of the German Reich”. The Court found that the counter-claim presented by Italy was inadmissible, because the dispute that Italy intended to bring before the Court by way of its counter-claim related to facts and situations existing prior to the entry into force as between the parties of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957, which formed the basis of the Court’s jurisdiction in the case (Order of 6 July 2010).
On 13 January 2011, Greece filed an Application requesting permission to intervene in the case. In its Application, Greece stated that it wished to intervene in the aspect of the procedure relating to judgments rendered by its own courts on the Distomo massacre and enforced (exequatur) by the Italian courts. The Court, in an Order of 4 July 2011, considered that it might find it necessary to consider the decisions of Greek courts in the Distomo case, in light of the principle of State immunity, for the purposes of making findings with regard to Germany’s submission that Italy had breached its jurisdictional immunity by declaring enforceable in Italy decisions of Greek courts founded on violations of international humanitarian law committed by the German Reich during the Second World War. This permitted the conclusion that Greece had an interest of a legal nature which might have been affected by the judgment in the case and, consequently, that Greece could be permitted to intervene as a non-party “in so far as this intervention is limited to the decisions of Greek courts [in the Distomo case]”.
In its Judgment rendered on 3 February 2012, the Court first examined the question whether Italy had violated Germany’s jurisdictional immunity by allowing civil claims to be brought against that State in the Italian courts. The Court noted in this respect that the question which it was called upon to decide was not whether the acts committed by the Third Reich during the Second World War were illegal, but whether, in civil proceedings against Germany relating to those acts, the Italian courts were obliged to accord Germany immunity. The Court held that the action of the Italian courts in denying Germany immunity constituted a breach of Italy’s international obligations. It stated in this connection that, under customary international law as it presently stood, a State was not deprived of immunity by reason of the fact that it was accused of serious violations of international human rights law or the international law of armed conflict. The Court further observed that, assuming that the rules of the law of armed conflict which prohibited murder, deportation and slave labour were rules of jus cogens, there was no conflict between those rules and the rules on State immunity. The two sets of rules addressed different matters. The rules of State immunity were confined to determining whether or not the courts of one State could exercise jurisdiction in respect of another State. They did not bear upon the question whether or not the conduct in respect of which the proceedings were brought was lawful or unlawful. Finally, the Court examined Italy’s argument that the Italian courts were justified in denying Germany immunity, because all other attempts to secure compensation for the various groups of victims involved in the Italian proceedings had failed. The Court found no basis in the relevant domestic or international practice that international law made the entitlement of a State to immunity dependent upon the existence of effective alternative means of securing redress.
The Court then addressed the question whether a measure of constraint taken against property belonging to Germany located on Italian territory constituted a breach by Italy of Germany’s immunity. It noted that Villa Vigoni was being used for governmental purposes that were entirely non-commercial; that Germany had in no way consented to the registration of the legal charge in question, nor allocated Villa Vigoni for the satisfaction of the judicial claims against it. Since the conditions permitting a measure of constraint to be taken against property belonging to a foreign State had not been met in this case, the Court concluded that Italy had violated its obligation to respect Germany’s immunity from enforcement.
Finally, the Court examined the question whether Italy had violated Germany’s immunity by declaring enforceable in Italy civil judgments rendered by Greek courts against Germany in proceedings arising out of the massacre committed in the Greek village of Distomo by the armed forces of the Third Reich in 1944. It found that the relevant decisions of the Italian courts constituted a violation by Italy of its obligation to respect the jurisdictional immunity of Germany.
Accordingly, the Court declared that Italy must, by enacting appropriate legislation, or by resorting to other methods of its choosing, ensure that the decisions of its courts and those of other judicial authorities infringing the immunity which Germany enjoyed under international law cease to have effect.
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening) - The Court finds that it has jurisdiction to entertain Ukraine’s request for a declaration that it did not breach its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and that this request is admissible
Summary of the Judgment of 2 February 2024
Preliminary objections
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening) - Preliminary objections - The Court to deliver its Judgment on Friday 2 February 2024 at 3 p.m.
Public sitting held on Wednesday 27 September 2023, at 3 p.m., at the Peace Palace, President Donoghue, presiding, in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening)
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening) - Conclusion of the public hearings
Public sitting held on Monday 25 September 2023, at 3 p.m., at the Peace Palace, President Donoghue, presiding, in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening)
Public sitting held on Monday 25 September 2023, at 10 a.m., at the Peace Palace, President Donoghue, presiding, in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening)
Public sitting held on Wednesday 20 September 2023, at 3 p.m., at the Peace Palace, President Donoghue, presiding, in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening)
Public sitting held on Wednesday 20 September 2023, at 10 a.m., at the Peace Palace, President Donoghue, presiding, in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening)
Public sitting held on Tuesday 19 September 2023, at 10 a.m., at the Peace Palace, President Donoghue, presiding, in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening)
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening) - Revised schedule for the oral observations of the intervening States on Wednesday 20 September 2023
Public sitting held on Monday 18 September 2023, at 10 a.m., at the Peace Palace, President Donoghue, presiding, in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening)
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening) - The Court to hold public hearings on the preliminary objections raised by the Russian Federation from Monday 18 to Wednesday 27 September 2023
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) - The Court decides on the admissibility of the declarations of intervention filed by 33 States
Admissibility of the Declarations of Intervention
Written Observations of Luxembourg on the admissibility of its Declaration of Intervention
(French version only)Written Observations of France on the admissibility of its Declaration of Intervention
(French version only)Written Observations of Belgium on the admissibility of its Declaration of Intervention
(French version only)Fixing of time-limit: Written statement of observations and submissions on preliminary objections
Request for the indication of provisional measures
On 31 May 2010, Australia instituted proceedings against Japan in respect of “Japan’s continued pursuit of a large‑scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic (‘JARPA II’), in breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling (‘ICRW’), as well as its other international obligations for the preservation of marine mammals and the marine environment”.
As basis for the jurisdiction of the Court, Australia invoked the provisions of Article 36, paragraph 2, of the Court’s Statute, referring to the declarations recognizing the Court’s jurisdiction as compulsory made by Australia and Japan on 22 March 2002 and 9 July 2007, respectively.
On 20 November 2012, New Zealand filed in the Registry a declaration of intervention in the case. Relying on Article 63, paragraph 2, of the Statute, it contended that, as a party to the ICRW, it had a direct interest in the construction that might be placed upon the Convention by the Court in its decision in the proceedings.
In an Order of 13 February 2013, having noted that New Zealand met the requirements set out in the Statute and the Rules of Court, the Court found that the declaration of intervention was admissible. Public hearings were held from 26 June to 16 July 2013, during which oral arguments were presented by Australia and Japan, and the experts that each Party had asked to be called were heard by the Court. New Zealand presented oral observations on the subject‑matter of its intervention.
In its Judgment rendered on 31 March 2014, the Court first found that it had jurisdiction to entertain the case, rejecting Japan’s argument that the dispute fell within the scope of a reservation contained in Australia’s declaration recognizing the Court’s jurisdiction as compulsory. It then turned to the question of the interpretation and application of Article VIII of the 1946 Convention, paragraph 1 of which states that the parties “may grant to any of [their] nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research”.
With respect to the interpretation of this provision, the Court noted that even if a whaling programme involves scientific research, the killing, taking and treating of whales pursuant to such a programme does not fall within Article VIII unless these activities are “for purposes of” scientific research. To determine this point and, in particular, to ascertain whether a programme’s use of lethal methods is for purposes of scientific research, the Court considered whether the elements of a programme’s design and implementation were reasonable in relation to its stated scientific objectives.
Regarding the application of Article VIII, paragraph 1, the Court noted that JARPA II could broadly be characterized as “scientific research”. However, it considered that the evidence before it did not establish that the programme’s design and implementation were reasonable in relation to achieving its stated objectives. The Court concluded that the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II were not “for purposes of scientific research”, pursuant to Article VIII, paragraph 1, of the 1946 Convention.
The Court then turned to the implications of that conclusion, in light of Australia’s contention that Japan had breached several provisions of the Schedule annexed to the Convention. Having found that Japan had indeed breached some of the provisions invoked (namely the moratoriums on commercial whaling and factory ships, and the prohibition on commercial whaling in the Southern Ocean Sanctuary), it considered the question of remedies. Since JARPA II was an ongoing programme, it ordered Japan to revoke any extant authorization, permit or licence to kill, or take or treat whales in relation to it, and to refrain from granting any further permits under Article VIII, paragraph 1, of the Convention, in pursuance of that programme.
On 6 December 2001, the Republic of Nicaragua filed an Application instituting proceedings against the Republic of Colombia in respect of a dispute concerning “a group of related legal issues subsisting” between the two States “concerning title to territory and maritime delimitation”. On 28 April 2003, Nicaragua filed its Memorial within the time-limit laid down by the Court. On 21 July 2003, Colombia filed preliminary objections to jurisdiction, leading to the suspension of the proceedings on the merits.
In its Judgment on the preliminary objections, rendered on 13 December 2007, the Court found that it had jurisdiction to entertain the dispute concerning sovereignty over the maritime features claimed by the Parties, other than the islands of San Andrés, Providencia and Santa Catalina. The Court held that the treaty signed in 1928 between Colombia and Nicaragua (in which Colombia recognized Nicaragua’s sovereignty over the Mosquito Coast and the Corn Islands, while Nicaragua recognized Colombia’s sovereignty over the islands of San Andrés, Providencia and Santa Catalina, and the maritime features forming part of the San Andrés Archipelago) had settled the issue of sovereignty over the islands of San Andrés, Providencia and Santa Catalina, that there was no extant legal dispute between the Parties on that question and that, therefore, the Court could not have jurisdiction over it under the American Treaty on Pacific Settlement (also known as the Pact of Bogotá and invoked by Nicaragua as basis for the Court’s jurisdiction in the case). On the other hand, as regards the question of the scope and composition of the rest of the San Andrés Archipelago, the Court considered that the 1928 Treaty failed to provide answers as to which other maritime features formed part of the Archipelago and thus that it had jurisdiction to adjudicate on the dispute regarding sovereignty over those other maritime features. As for its jurisdiction with respect to the maritime delimitation issue, the Court concluded that the 1928 Treaty had not effected a general delimitation of the maritime areas between Colombia and Nicaragua and that, as the dispute had not been settled within the meaning of the Pact of Bogotá, the Court had jurisdiction to adjudicate upon it.
On 25 February 2010, Costa Rica filed an Application for permission to intervene in the case. In its Application it contended, among other things, that “[b]oth Nicaragua and Colombia, in their boundary claims against each other, claim maritime area to which Costa Rica is entitled” and indicated that it wished to intervene in the proceedings as a non-party State. On 10 June 2010, the Republic of Honduras also filed an Application for permission to intervene in the case, asserting that Nicaragua, in its dispute with Colombia, had put forward maritime claims that lay in an area of the Caribbean Sea in which Honduras had rights and interests. Honduras stated in its Application that it was seeking primarily to intervene in the proceedings as a party. The Court rendered two Judgments on 4 May 2011, in which it ruled that the Applications for permission to intervene filed by Costa Rica and Honduras could not be granted. The Court noted that the interest of a legal nature invoked by Costa Rica could only be affected if the maritime boundary that the Court had been asked to draw between Nicaragua and Colombia were to be extended beyond a certain latitude southwards. However, following its jurisprudence, the Court, when drawing a line delimiting the maritime areas between the two Parties to the main proceedings, would, if necessary, end that line before it reached an area in which the interests of a legal nature of third States might be involved. The Court concluded that Costa Rica’s interest of a legal nature could not be affected by the decision in the proceedings between Nicaragua and Colombia. With respect to Honduras’s Application for permission to intervene, the Court found that Honduras had failed to satisfy the Court that it had an interest of a legal nature that might be affected by the decision of the Court in the main proceedings. It ruled on the one hand that, since the entire maritime boundary between Honduras and Nicaragua in the Caribbean Sea had been settled by the Judgment of the Court rendered between those two States in 2007, there were no extant rights or legal interests that Honduras might seek to protect in the settlement of the dispute between Nicaragua and Colombia. On the other hand, the Court held that Honduras could invoke an interest of a legal nature, in the main proceedings, on the basis of the 1986 bilateral treaty concluded between Honduras and Colombia, but clarified that it would not be relying on that treaty to determine the maritime boundary between Colombia and Nicaragua.
In its Judgment rendered on the merits of the case on 19 November 2012, the Court found that the territorial dispute between the Parties concerned sovereignty over the features situated in the Caribbean Sea — the Alburquerque Cays, the East-Southeast Cays, Roncador, Serrana, Quitasueño, Serranilla and Bajo Nuevo — which were all above water at high tide and which were therefore islands capable of appropriation. The Court noted, however, that Quitasueño comprised only a single, tiny island, known as QS 32, and a number of low-tide elevations (features above water at low tide but submerged at high tide). The Court then observed that, under the terms of the 1928 Treaty concerning Territorial Questions at Issue between Colombia and Nicaragua, Colombia not only had sovereignty over the islands of San Andrés, Providencia and Santa Catalina, but also over other islands, islets and reefs “forming part” of the San Andrés Archipelago. Thus, in order to address the question of sovereignty, the Court first needed to ascertain what constituted the San Andrés Archipelago. It concluded, however, that neither the 1928 Treaty nor the historical documents conclusively established the composition of that Archipelago. The Court therefore examined the arguments and evidence not based on the composition of the Archipelago under the 1928 Treaty. It found that neither Nicaragua nor Colombia had established that it had title to the disputed maritime features by virtue of uti possidetis juris (the principle that, upon independence, new States inherit the territories and boundaries of the former colonial provinces), because nothing clearly indicated whether these features were attributed to the colonial provinces of Nicaragua or of Colombia. The Court then considered whether sovereignty could be established on the basis of State acts manifesting a display of authority on a given territory (effectivités). It regarded it as having been established that for many decades Colombia had continuously and consistently acted à titre de souverain in respect of the maritime features in dispute. This exercise of sovereign authority had been public and there was no evidence that it had met with any protest from Nicaragua prior to 1969, when the dispute had crystallized. Moreover, the evidence of Colombia’s acts of administration with respect to the islands was in contrast to the absence of any evidence of acts à titre de souverain on the part of Nicaragua. The Court also noted that, while not being evidence of sovereignty, Nicaragua’s conduct with regard to the maritime features in dispute, the practice of third States and maps afforded some support to Colombia’s claim. The Court concluded that Colombia, and not Nicaragua, had sovereignty over the islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla.
With respect to Nicaragua’s claim for delimitation of a continental shelf extending beyond 200 nautical miles, the Court observed that “any claim of continental shelf rights beyond 200 miles [by a State party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS)] must be in accordance with Article 76 of UNCLOS and reviewed by the Commission on the Limits of the Continental Shelf”. Given the object and purpose of UNCLOS, as stipulated in its Preamble, the fact that Colombia was not a party thereto did not relieve Nicaragua of its obligations under Article 76 of that Convention. The Court observed that Nicaragua had submitted to the Commission only “Preliminary Information” which, by its own admission, fell short of meeting the requirements for the Commission to be able to make its recommendations. As the Court was not presented with any further information, it found that, in this case, Nicaragua had not established that it had a continental margin that extended far enough to overlap with Colombia’s 200-nautical-mile entitlement to the continental shelf, measured from Colombia’s mainland coast. The Court was therefore not in a position to delimit the maritime boundary between the extended continental shelf as claimed by Nicaragua and the continental shelf of Colombia. Notwithstanding this conclusion, the Court noted that it was still called upon to effect the delimitation of the zone situated within 200 nautical miles of the Nicaraguan coast, where the entitlements of Colombia and Nicaragua overlapped.
In order to effect the delimitation of the maritime boundary, the Court first determined what the relevant coasts of the Parties were, namely those coasts the projections of which overlapped. It found that Nicaragua’s relevant coast was its whole coast, with the exception of the short stretch of coast near Punta de Perlas, and that Colombia’s relevant coast was the entire coastline of the islands under Colombian sovereignty, except for Quitasueño, Serranilla and Bajo Nuevo. The Court next noted that the relevant maritime area, i.e., the area in which the potential entitlements of the Parties overlapped, extended 200 nautical miles east of the Nicaraguan coast. The boundaries to the north and to the south were determined by the Court in such a way as not to overlap with any existing boundaries or to extend into areas where the rights of third States might be affected.
To effect the delimitation, the Court followed the three-stage procedure previously laid down by and employed in its jurisprudence.
First, it selected the base points and constructed a provisional median line between the Nicaraguan coast and the western coasts of the relevant Colombian islands opposite the Nicaraguan coast.
Second, the Court considered any relevant circumstances which might have called for an adjustment or shifting of the provisional median line so as to achieve an equitable result. It observed that the substantial disparity between the relevant Colombian coast and that of Nicaragua (approximately 1:8.2), and the need to avoid a situation whereby the line of delimitation cut off one or other of the Parties ties from maritime areas into which its coasts projected, constituted relevant circumstances. The Court noted that, while legitimate security concerns had to be borne in mind in determining what adjustment should be made to the provisional median line or in what way that line should be shifted, the conduct of the Parties, issues of access to natural resources and delimitations already effected in the area were not relevant circumstances in this case. In the relevant area between the Nicaraguan mainland and the western coasts of the Alburquerque Cays, San Andrés, Providencia and Santa Catalina, where the relationship was one of opposite coasts, the relevant circumstances called for the provisional median line to be shifted eastwards. To that end, the Court determined that different weightings should be given to the base points situated on Nicaraguan and Colombian islands, namely a weighting of one to each of the Colombian base points and a weighting of three to each of the Nicaraguan base points. The Court considered, however, that extending the line thus constructed to the north or the south would not lead to an equitable result, since it would leave Colombia with a significantly larger share of the relevant area than that accorded to Nicaragua, notwithstanding the fact that Nicaragua’s relevant coast was more than eight times the length of Colombia’s relevant coast. Moreover, it would cut off Nicaragua from the areas to the east of the principal Colombian islands into which the Nicaraguan coast projected. In the view of the Court, an equitable result was to be achieved by continuing the boundary line out to the line 200 nautical miles from the Nicaraguan coast. To the north, that line would follow the parallel passing through the most northern point of the outer limit of the 12-nautical-mile territorial sea of Roncador. To the south, the maritime boundary would first follow the outer limit of the 12-nautical-mile territorial sea of the Alburquerque and East-Southeast Cays, then the parallel from the most eastern point of the territorial sea of the East-Southeast Cays. In order to prevent Quitasueño and Serrana from falling, under those circumstances, on the Nicaraguan side of the boundary line, the maritime boundary around each of those features would follow the outer limit of their 12-nautical-mile territorial sea.
Third, and finally, the Court checked that, taking account of all the circumstances of the case, the delimitation thus obtained did not create a disproportionality that would render the result inequitable. The Court observed that the boundary line had the effect of dividing the relevant area between the Parties in a ratio of approximately 1:3.44 in Nicaragua’s favour, while the ratio of relevant coasts was approximately 1:8.2. It concluded that that line did not entail such disproportionality as to create an inequitable result.
On 29 March 1994, Cameroon filed in the Registry of the Court an Application instituting proceedings against Nigeria with respect to the question of sovereignty over the Bakassi Peninsula, and requesting the Court to determine the course of the maritime frontier between the two States in so far as that frontier had not been established in 1975. As a basis for the jurisdiction of the Court, Cameroon referred to the declarations made by the two States under Article 36, paragraph 2, of the Statute of the Court, by which they accepted that jurisdiction as compulsory. In its Application, Cameroon referred to “an aggression by the Federal Republic of Nigeria, whose troops are occupying several Cameroonian localities on the Bakassi Peninsula”, and asked the Court, inter alia, to adjudge and declare that sovereignty over the Peninsula of Bakassi was Cameroonian, by virtue of international law, and that Nigeria had violated and was violating the fundamental principle of respect for frontiers inherited from colonization (uti possidetis juris), as well as other rules of conventional and customary international law, and that Nigeria’s international responsibility was involved. Cameroon also requested the Court to proceed to prolong the course of its maritime boundary with Nigeria up to the limit of the maritime zone which international law placed under their respective jurisdictions.
On 6 June 1994, Cameroon filed in the Registry an Additional Application “for the purpose of extending the subject of the dispute” to a further dispute described as relating essentially “to the question of sovereignty over part of the territory of Cameroon in the area of Lake Chad”, while also requesting the Court to specify definitively the frontier between Cameroon and Nigeria from Lake Chad to the sea. That Application was treated as an amendment to the initial Application. After Nigeria had raised certain preliminary objections, Cameroon presented, on 1 May 1996, a written statement of its observations and submissions relating thereto, in accordance with an Order of the President dated 10 January 1996. Moreover, on 12 February 1996, Cameroon, referring to the “grave incidents which [had] taken place between the . . . forces [of the Parties] in the Bakassi Peninsula since . . . 3 February 1996”, asked the Court to indicate provisional measures. By an Order dated 15 March 1996, the Court indicated a number of provisional measures aimed principally at putting an end to the hostilities.
The Court held hearings from 2 to 11 March 1998 on the preliminary objections raised by Nigeria. In its Judgment of 11 June 1998, the Court found that it had jurisdiction to adjudicate upon the merits of the dispute and that Cameroon’s requests were admissible. The Court rejected seven of the preliminary objections raised by Nigeria and declared that, as the eighth did not have an exclusively preliminary character, it should be settled during the proceedings on the merits.
Nigeria filed its Counter-Memorial, including counter-claims, within the time-limit extended by the Court. On 30 June 1999, the Court adopted an Order declaring Nigeria’s counter-claims admissible and fixing 4 April 2000 as the time-limit for the filing of the Reply of Cameroon and 4 January 2001 as the time-limit for the filing of the Rejoinder of Nigeria. In its Order, the Court also reserved the right of Cameroon to present its views in writing a second time on the Nigerian counter-claims in an additional pleading which might be the subject of a subsequent Order. The Reply and the Rejoinder were duly filed within the time-limits so fixed. In January 2001, Cameroon informed the Court that it wished to present its views in writing a second time on Nigeria’s counter-claims. As Nigeria had no objection to that request, the Court authorized the presentation by Cameroon of an additional pleading relating exclusively to the counter-claims submitted by Nigeria. That pleading was duly filed within the time-limit fixed by the Court.
On 30 June 1999, the Republic of Equatorial Guinea filed an Application for permission to intervene in the case. Each of the two Parties having filed its written observations on that Application and Equatorial Guinea having informed the Court of its views with respect to them, the Court, by Order of 21 October 1999, authorized Equatorial Guinea to intervene in the case pursuant to Article 62 of the Statute, to the extent, in the manner and for the purposes set out in its Application. Equatorial Guinea filed a written statement and each of the Parties filed written observations on the latter within the time-limits fixed by the Court. Public hearings on the merits were held from 18 February to 21 March 2002.
In its Judgment of 10 October 2002, the Court determined as follows the course of the boundary, from north to south, between Cameroon and Nigeria :
In its Judgment the Court requested Nigeria, expeditiously and without condition, to withdraw its administration and military or police forces from the area of Lake Chad falling within Cameroonian sovereignty and from the Bakassi Peninsula. It also requested Cameroon expeditiously and without condition to withdraw any administration or military or police forces which might be present along the land boundary from Lake Chad to the Bakassi Peninsula on territories which, pursuant to the Judgment, fell within the sovereignty of Nigeria. The latter had the same obligation in regard to territories in that area which fell within the sovereignty of Cameroon. The Court took note of Cameroon’s undertaking, given at the hearings, to “continue to afford protection to Nigerians living in the [Bakassi] peninsula and in the Lake Chad area”. Finally, the Court rejected Cameroon’s submissions regarding the State responsibility of Nigeria, as well as Nigeria’s counter-claims.
On 2 November 1998, the Republic of Indonesia and Malaysia jointly notified the Court of a Special Agreement between the two States, signed at Kuala Lumpur on 31 May 1997 and having entered into force on 14 May 1998. In accordance with that Special Agreement, they requested the Court to determine, on the basis of the treaties, agreements and any other evidence furnished by them, to which of the two States sovereignty over Pulau Ligitan and Pulau Sipadan belonged.
Shortly after the filing by the Parties of the Memorials, Counter-Memorials and Replies, the Philippines, on 13 March 2001, requested permission to intervene in the case. In its Application, the Philippines indicated that the object of its request was to
“preserve and safeguard the historical and legal rights [of its Government] arising from its claim to dominion and sovereignty over the territory of North Borneo, to the extent that those rights [were] affected, or [might] be affected, by a determination of the Court of the question of sovereignty over Pulau Ligitan and Pulau Sipadan”.
The Philippines specified that it was not seeking to become a party in the case. Further, the Philippines specified that “[its] Constitution . . . as well as its legislation ha[d] laid claim to dominion and sovereignty over North Borneo”. The Application for permission to intervene drew objections from Indonesia and Malaysia. Among other things, Indonesia stated that the Application should be rejected on the ground that it had not been filed in time and that the Philippines had not shown that it had an interest of a legal nature at issue in the case. Meanwhile, Malaysia added that the object of the Application was inadequate. The Court therefore decided to hold public sittings to hear the Philippines, Indonesia and Malaysia, before ruling on whether to grant the Application for permission to intervene. Following those sittings, the Court, on 23 October 2001, delivered a Judgment by which it rejected the Application by the Philippines for permission to intervene.
After the holding of public sittings in June 2002, the Court delivered its Judgment on the merits on 17 December 2002. In that Judgment, it began by recalling the complex historical background of the dispute between the Parties. It then examined the titles invoked by them. Indonesia asserted that its claim to sovereignty over the islands was based primarily on a conventional title, the 1891 Convention between Great Britain and the Netherlands.
After examining the 1891 Convention, the Court found that, when read in the context and in the light of its object and purpose, that instrument could not be interpreted as establishing an allocation line determining sovereignty over the islands out to sea, to the east of the island of Sebatik, and that as a result the Convention did not constitute a title on which Indonesia could found its claim to Ligitan and Sipadan. The Court stated that that conclusion was confirmed both by the travaux préparatoires and by the subsequent conduct of the parties to the Convention. The Court further held that the cartographic material submitted by the Parties in the case did not contradict that conclusion.
Having rejected that argument by Indonesia, the Court turned to consideration of the other titles on which Indonesia and Malaysia claimed to found their sovereignty over the islands of Ligitan and Sipadan. The Court sought to determine whether Indonesia or Malaysia obtained a title to the islands by succession. In that connection, it did not accept Indonesia’s contention that it retained title to the islands as successor to the Netherlands, which had allegedly acquired it through contracts concluded with the Sultan of Bulungan, the original title-holder. Nor did the Court accept Malaysia’s contention that it had acquired sovereignty over the islands of Ligitan and Sipadan following a series of alleged transfers of the title originally held by the former sovereign, the Sultan of Sulu, that title having allegedly passed in turn to Spain, to the United States, to Great Britain on behalf of the State of North Borneo, to the United Kingdom and finally to Malaysia.
Having found that neither of the Parties had a treaty-based title to Ligitan and Sipadan, the Court next considered the question whether Indonesia or Malaysia could hold title to the disputed islands by virtue of the effectivités cited by them. In that regard, the Court determined whether the Parties’ claims to sovereignty were based on activities evidencing an actual, continued exercise of authority over the islands, i.e., the intention and will to act as sovereign.
In that connection, Indonesia cited a continuous presence of the Dutch and Indonesian navies in the vicinity of Ligitan and Sipadan. It added that the waters around the islands had traditionally been used by Indonesian fishermen. In respect of the first of those arguments, it was the opinion of the Court that from the facts relied upon in the case “it [could] not be deduced . . . that the naval authorities concerned considered Ligitan and Sipadan and the surrounding waters to be under the sovereignty of the Netherlands or Indonesia”. As for the second argument, the Court considered that “activities by private persons [could] not be seen as effectivités if they [did] not take place on the basis of official regulations or under governmental authority”.
Having rejected Indonesia’s arguments based on its effectivités, the Court turned to the consideration of the effectivités relied on by Malaysia. As evidence of its effective administration of the islands, Malaysia cited inter alia the measures taken by the North Borneo authorities to regulate and control the collecting of turtle eggs on Ligitan and Sipadan, an activity of some economic significance in the area at the time. It relied on the Turtle Preservation Ordinance of 1917 and maintained that the Ordinance “[had been] applied until the 1950s at least” in the area of the two disputed islands. It further invoked the fact that the authorities of the colony of North Borneo had constructed a lighthouse on Sipadan in 1962 and another on Ligitan in 1963, that those lighthouses still existed and that they had been maintained by Malaysian authorities since its independence. The Court noted that
“the activities relied upon by Malaysia . . . [we]re modest in number but . . . they [we]re diverse in character and include[d] legislative, administrative and quasi-judicial acts. They cover[ed] a considerable period of time and show[ed] a pattern revealing an intention to exercise State functions in respect of the two islands in the context of the administration of a wider range of islands.”
The Court further stated that “at the time when these activities were carried out, neither Indonesia nor its predecessor, the Netherlands, [had] ever expressed its disagreement or protest”.
The Court concluded, on the basis of the above-mentioned effectivités, that sovereignty over Pulau Ligitan and Pulau Sipadan belonged to Malaysia.
On 9 May 1973, Australia and New Zealand each instituted proceedings against France concerning tests of nuclear weapons which France proposed to carry out in the atmosphere in the South Pacific region. France stated that it considered the Court manifestly to lack jurisdiction and refrained from appearing at the public hearings or filing any pleadings. By two Orders of 22 June 1973, the Court, at the request of Australia and New Zealand, indicated provisional measures to the effect, inter alia , that pending judgment France should avoid nuclear tests causing radioactive fall-out on Australian or New Zealand territory. By two Judgments delivered on 20 December 1974, the Court found that the Applications of Australia and New Zealand no longer had any object and that it was therefore not called upon to give any decision thereon. In so doing the Court based itself on the conclusion that the objective of Australia and New Zealand had been achieved inasmuch as France, in various public statements, had announced its intention of carrying out no further atmospheric nuclear tests on the completion of the 1974 series.