Bernas Public International Law – PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES Part 4

CHAPTER 13: PEACEFUL SETTLEMENT OF INTERNATIONAL
DISPUTES Part 4

Nicaragua vs. US

I. Facts:

• Court finds it necessary to indicate provisional measures under Art. 41 to preserve the rights claimed. Such decision in no way prejudges the question of jurisdiction to deal with the merits of the case.
• Such measures include:

a. US should cease and refrain from any action restricting, blocking or endangering access from or to Nicaraguan ports, and in particular, laying mines.

b. The right to sovereignty and political independence of Nicaragua. States should refrain from using force or threat of force against its territorial integrity or political independence. States should not intervene in matter within the domestic jurisdiction of a State.

c. The governments of US and Nicaragua should ensure that no action is made to aggravate or extend the dispute.

d. Both Governments should ensure that no action is taken which might prejudice the rights of the other party in respect to the carrying out of whatever decision the Court may render.

e. Until final judgment, the Court will keep matters covered by this order continuously under review.

f. Written proceedings shall first be addressed to the question of jurisdiction of the Court.

Case concerning legality of use of force (Yugoslavia vs. US, ICJ, 1999)

I. Facts:

• By request of the Federal Republic of Yugoslavia against the NATO states (Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, UK, US) in relation to the bombings carried out by NA 8:00 AM forces.
• Court recognizes that it can exercise jurisdiction only between states parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned.
• In requests for provisional measures, the Court need not, before deciding w/n to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet only if the provisions invoked by the applicant appear, prima facie, to afford a basis on the the jurisdiction of the Court might be established.
• Yugoslavia claims ICJ jurisdiction based on Art. IX of the Genocide Convention to which both parties are signatories.
• US contends that it made a clear and unambiguous reservation that “with reference to Art. IX, specific consent of the US is required in each case.”
• Further, (a) reservations in the Genocide Convention are generally permitted; (b) the reservation is not contrary to its object and purpose; (c) absence of Yugoslavia’s objection to the reservation means acceptance.
• US adds that there no legally sufficient basis between the charges against the US and the supposed jurisdictional basis under the GC.

II. Held:

• Court accepts US’ contentions and finds that it does not have jurisdiction to entertain the dispute between Yugoslavia and the US alleged to fall under the provisions of the GC, and that Article manifestly does not constitute a basis of jurisdiction in the present case, even prima facie.
• Even under Art. 38, par. 5 of the Rules of Court which allows the jurisdiction of the Court to be founded upon the consent thereto yet to be manifested or given by the other party, the fact that US has not made such consent does not create a prima facie jurisdiction allowing the Court to indicate any provisional measure.
• There is a fundamental distinction between the question of acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law.
• Whether or not States accept jurisdiction, they remain responsible for acts attributable to them that violate IL, including humanitarian law. Disputes relating to the legality of such acts MUST be resolved by peaceful means chosen by the parties.

Intervention

• Art. 62:
• If a State has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene, which the Court shall decide at its discretion.
• Art. 63:
• Registrar shall inform all parties to a convention regarding cases which relate to its construction.
• Every state notified has the right to intervene, but the construction given by the judgment shall be binding on the intervenor.