The 2011 Judicial Activity of the International Court of Justice

Jacob Katz Cogan

doi:10.5305/amerjintelaw.106.3.0586

¹ Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Preliminary Objections (Int’l Ct. Justice Apr. 1, 2011). All the materials of the Court cited in this report are available on its website, http://www.icj-cij.org.

² Territorial and Maritime Dispute (Nicar. v. Colom.), Application by Costa Rica for Permission to Intervene (Int’l Ct. Justice May 4, 2011); id., Application by Honduras for Permission to Intervene (Int’l Ct. Justice May 4, 2011).

³ Application of the Interim Accord of 13 September 1995 (Former Yugoslav Republic of Maced. v. Greece) (Int’l Ct. Justice Dec. 5, 2011).

⁴ Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.), Provisional Measures (Int’l Ct. Justice Mar. 8, 2011).

⁵ Jurisdictional Immunities of the State (Ger. v. It.), Application by Greece for Permission to Intervene (Int’l Ct. Justice July 4, 2011).

⁶ Request for Interpretation ofthe Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodiav. Thaihnd) (Cambodia v. Thai.), Provisional Measures (Int’l Ct. Justice July 18, 2011). The Court also issued orders fixing the time limits in a number of other pending cases.

⁷ International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 UNTS 195 [hereinafter Cerd]. Article 22 provides:

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 for in 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 of settlement.

⁸ See Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Preliminary Objections, para. 22.

⁹ See id., para. 187(1)(a). In favor were President Owada; Judges Al-Khasawneh, Simma, Abraham, Keith, Supúlveda-Amor, Bennouna, Caneado Trindade, Yusuf, Greenwood, and Donoghue; and Judge ad hoc Gaja. Opposed were Vice-President Tomka and Judges Koroma, Skotnikov, and Xue. The Court included Judge ad hoc Gaja (appointed by Georgia).

¹⁰ See id., para. 187(1)(b). In favor were Vice-President Tomka and Judges Koroma, Al-Khasawneh, Keith, Supúlveda-Amor, Bennouna, Skotnikov, Yusuf, Greenwood, and Xue. Opposed were President Owada; Judges Simma, Abraham, Caneado Trindade, and Donoghue; and Judge ad hoc Gaja.

¹ ‘ See id., para. 187(2). President Owada and Judges Koroma, Simma, Abraham, Greenwood, and Donoghue appended separate opinions; Vice-President Tomka and Judge Skotnikov appended declarations; Judge Cançado Trindade appended a dissenting opinion; President Owada, Judges Simma, Abraham, and Donoghue, and Judge ad hoc Gaja appended a joint dissenting opinion.

¹² See Szewczyk, Bart M. J., Case Report: Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), 105 AJIL 747 (2011)CrossRef Google Scholar. On the earlier pro visional measures order, see Buys, Cindy Galway, Case Report: Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), 103 AJIL 294 (2009)CrossRef Google Scholar, and Mathias, D. Stephen, The 2008 Judicial Activity of the International Court of Justice, 103 AJIL 527, 537-38 (2009)Google Scholar.

¹³ Worded as it was (that is, whether the first preliminary objection should be rejected or upheld), the vote masked the extent of support among members of the Court for the judgment’s definition of the term “dispute.” For example, though voting with the majority, President Owada and Judges Abraham, Donoghue, and Simma disagreed with the Court’s definition, and though voting in the minority, Vice-President Tomka and Judge Skotnikov agreed with it. Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Preliminary Objections, Deci. Tomka, V.P.; Deci. Skotnikov, J.

¹⁴ Id., Preliminary Objections, para. 31.

¹⁵ Id., para. 30. The Court did acknowledge that “it is not necessary that a State must expressly refer to a specific treaty in its exchanges with the other State to enable it later to invoke that instrument before the Court,” but it went on to say that an “express specification would remove any doubt about one State’s understanding of the subject- matter in issue and put the other on notice.” Id.

¹⁶ Id., para. 31; see also id., para. 30 (citing South West Africa (Eth. v. S. Afr.; Liber, v. S. Afr.), Preliminary Objections, 1962 ICJ 319, 328 (Dec. 21)). That said, the Court recognized that “the existence of a dispute may be inferred from the failure of a State to respond to a claim in circumstances where a response is called for.” Id., para. 30. A number of the separate opinions criticized these notice and positive-opposition requirements, explaining how they created hurdles to the Court’s jurisdiction not in accord with precedent. See id., Sep. Op. Owada, P.; Sep. Op. Simma, J., para. 6; Sep. Op. Abraham, J.; Sep. Op. Donoghue, J.

¹⁷ See, e.g., id., Preliminary Objections, para. 54.

¹⁸ See id., para. 113. The Court’s method of evaluating the evidence submitted by Georgia to demonstrate the existence of a dispute was also severely criticized by a number of members, particularly Judge Simma. He wrote that “by finding specific faults or defects with each piece of documentary evidence” dated prior to August 9, 2008 (alleged faults as to “formal designation, authorship, executive inaction, attribution, and notice”), and then categorically rejecting that evidence because of those faults, the Court “failfed] to capture possible differences in the degrees of probative value that various documents may exemplify.” Id., Sep. Op. Simma, J., paras. 4, 7.

¹⁹ Article 22 does not require the identification of the specific date when a dispute arose. As suggested below, it appears that the Court specified the date because that date was relevant, in its view, to the evaluation of Russia’s second preliminary objection.

²⁰ It appears that the provisional measures order also interpreted Article 22 as establishing a type of requirement. See Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Provisional Measures, 2008 ICJ Rep. 353, para. 114 (Oct. 15). In its preliminary objections judgment, the Court stressed that the clause would be of no effect if it were not interpreted as a requirement. Taking a different approach, the joint dissenting opinion concluded that “the Court has never conditioned its jurisdiction on the existence of prior negotiations between the parties, except on the basis of an express provision to that effect.” Id., Preliminary Objections, Joint Diss. Op. Owada, P., Simma, Abraham & Donoghue,}]., para. 25. The text here, the dissenting judges argued, did not contain an express condition.

²¹ Id., Preliminary Objections, para. 162. Previously, in its provisional measures order, the Court had explained that “negotiation” meant that “some attempt should have been made by the claimant party to initiate, with the Respondent Party, discussions on issues that would fall under Cerd.” Id., Provisional Measures, 2008 ICJ Rep., para. 114.

²² See id., Preliminary Objections, paras. 178,181. In its provisional measures order, the Court considered, prima facie, that it had jurisdiction because, inter alia, issues relating to the Cerd were “raised in bilateral contacts between the Parties” and before the Security Council (and there commented upon by Russia), with the consequence that the “Russian Federation was made aware of Georgia’s position in that regard.” Id., Provisional Measures, 2008 ICJ Rep., para. 115.

²³ This was the first time that the Court concluded that it lacked jurisdiction only because the condition of negotiation had not been satisfied. See id., Preliminary Objections, Joint Diss. Op., para. 63.

²⁴ See id., Preliminary Objections, para. 113.

²⁵ Thus, as Judges Donoghue and Simma noted, if the Court had found that the dispute between the parties existed before August 9, it would no doubt have also found that negotiations had taken place, and hence would have rejected Russia’s second preliminary objection. See id., Sep. Op. Simma, J., para. 5; Sep. Op. Donoghue, J., para. 21.

²⁶ Because Georgia did not assert that it used or attempted to use “procedures expressly provided for in this Convention,” the Court did not need to decide whether Article 22 preconditioned jurisdiction on an applicant’s resort to both those procedures and negotiations or to just one of those mechanisms. See id., Preliminary Objections, para. 183. The joint dissenting opinion concluded that the two mechanisms were not cumulative. See id., Joint Diss. Op., para. 41.

²⁷ Id., Preliminary Objections, para. 141. As the joint dissenting opinion pointed out, this closing date for negotiations was considerably earlier than the one that the Court applied in analogous circumstances in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat, v. Serb.), Preliminary Objections, 2008 ICJ Rep. 412, para. 85 (Nov. 18) (condition must be satisfied by “the date when the Court decides on its jurisdiction”).

²⁸ See Georgia v. Russia (No. 2), App. No. 38263/08 (Eur. Ct. H.R. Dec. 13, 2011) (declaring the application admissible).

²⁹ It appears that Russia did not raise at the provisional measures stage the arguments that made up its fourth preliminary objection. See Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Provisional Measures, paras. 71-72, 83, 98-103.

³⁰ See Cogan, Jacob Katz, The 2009 Judicial Activity of the International Court of justice, 104 AJIL 605, 608 & n.21 (2010)CrossRef Google Scholar.

³¹ Judges Cançado Trindade, Donoghue, Greenwood, Xue, and Yusuf replaced Judges Buergenthal, Higgins, Parra-Aranguren, Ranjeva, and Shi. Judge Parra-Aranguren did not participate in the provisional measures phase of the case.

³² If they had voted as they had previously, there would have been a tie vote on the second preliminary objection. President Owada, who voted against upholding the objection, would have had the casting vote.

³³ Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Preliminary Objections, para. 129 (quoting id., Provisional Measures, 2008 ICJ Rep., para. 148).

³⁴ Id., Sep. Op. Greenwood, J., para. 2.

³⁵ Previously, in 2007, the Court ruled on Colombia’s preliminary objections to the jurisdiction of the Court. See Mathias, D. Stephen, The 2007 Judicial Activity of the International Court of Justice, 102 AJIL 588, 602-04 (2008)CrossRef Google Scholar.

³⁶ Costa Rica Application for Permission to Intervene, para. 24, Territorial and Maritime Dispute.

³⁷ Honduras Application for Permission to Intervene, para. 33, Territorial and Maritime Dispute.

³⁸ Indeed, Colombia argued that both Costa Rica and Honduras satisfied the requirements of Article 62 for intervention as nonparties. Colombia also did not object to Honduras’s request to intervene as a party. See Territorial and Maritime Dispute, Application by Honduras for Permission to Intervene, para. 55.

³⁹ In favor were President Owada and Vice-President Tomka; Judges Koroma, Keith, Supúlveda-Amor, Bennouna, Skotnikov, and Xue; and Judge ad hoc Cot. Opposed were Judges Al-Khasawneh, Simma, Abraham, Caçado Trindade, Yusuf, and Donoghue, and Judge ad hoc Gaja. Judge Keith and Judge ad hoc Gaja appended declarations; Judges Al-Khasawneh, Abraham, and Donoghue appended dissenting opinions; Judges Cançado Trindade and Yusuf appended a joint dissenting opinion. Having invoked Article 24(1) of the Statute, Judge Greenwood did not participate in the judgment. See Verbatim Record, Territorial and Maritime Dispute, Application by Costa Rica for Permission to Intervene, ICJ Doc. Cr 2010/12, at 11.

⁴⁰ In favor were President Owada and Vice-President Tomka; Judges Koroma, Al-Khasawneh, Simma, Keith, Supúlveda-Amor, Bennouna, Cançado Trindade, Yusuf, and Xue; and Judges ad hoc Cot and Gaja. Opposed were Judges Abraham and Donoghue. These last two judges agreed with the Court that Honduras’s application to intervene as a party should be rejected. They believed, however, that the application should have been granted to allow Honduras to intervene as a nonparty. Judges Al-Khasawneh and Keith appended declarations; Judges Caneado Trindade and Yusuf appended a joint declaration; and Judges Abraham and Donoghue appended dissenting opinions. Having invoked Article 24(1) of the Statute, Judge Greenwood did not participate in the judgment. See id. Judge Skotnikov, who was not present during the Honduras hearings, also did not participate in the judgment.

⁴¹ Because, as will be seen, the application was rejected for other reasons, the Court did not need to decide whether Honduras could intervene as a parry. Nonetheless, the Court’s short discussion of the issue (in both judgments) helpfully reiterates the distinction between party and nonparty intervention under Article 62 (which does not use those terms) and confirms the possibility of intervention as a party, which was discussed previously by a chamber of the Court in Land, Island and Maritime Frontier Dispute (El Sal./Hond.), Application by Nicaragua for Permission to Intervene, 1990 ICJ Rep. 92, para. 99 (Sept. 13). Here, the Court explained that whereas “the status of inter-vener as a party requires . . . the existence of a basis of jurisdiction as between the States concerned, the validity of which is established by the Court at the time when it permits intervention,” “such a basis of jurisdiction is not a condition for intervention as a non-party.” Territorial and Maritime Dispute, Application by Honduras for Permission to Intervene, para. 28; accord id., Application by Costa Rica for Permission to Intervene, paras. 38-39; see Rules of Court, Art. 81(2)(c). “Ifit is permitted by the Court to become a party to the proceedings,” the Court continued, “the intervening State may ask for rights of its own to be recognized by the Court in its future decision, which would be binding for that State in respect of those aspects for which intervention was granted, pursuant to Article 59 of the Statute.” Territorial and Maritime Dispute, Application by Honduras for Permission to Intervene, para. 29. by contrast, “a State permitted to intervene in the proceedings as a non-party ‘does not acquire the rights, or become subject to the obligations, which attached to the status of a party, under the Statute and Rules of Court, or the general principles of procedural law.’” Id. (quoting Land, Island and Maritime Frontier Dispute, Application by Nicaragua for Permission to Intervene, 1990 ICJ Rep., para. 99).

⁴² Territorial and Maritime Dispute, Application by Costa Rica for Permission to Intervene, para. 23; Id., Application by Honduras for Permission to Intervene, para. 33. Honduras asserted that Article 62, like Article 63, provided a “right” to intervene. The Court dismissed the suggestion. Id., para. 36. But see id., Diss. Op. Abraham, J., paras. 5-15.

⁴³ Id., Application by Costa Rica for Permission to Intervene, para. 26 (emphasis added); id., Application by Honduras for Permission to Intervene, para. 37 (emphasis added). It appears that the Court left open the possibility of requiring states seeking to intervene as a party to demonstrate a legal right.

⁴⁴ Id., Application by Costa Rica for Permission to Intervene, para. 26; id., Application by Honduras for Per mission to Intervene, para. 37. This was the first time that the Court defined the term “interest of a legal nature.”

⁴⁵ Id., Application by Costa Rica for Permission to Intervene, para. 26; id., Application by Honduras for Per mission to Intervene, para. 37.

⁴⁶ Id., Application by Honduras for Permission to Intervene, para. 44. The Court explained that the proper object of an intervention “is to enable a third State ... to participate in the main case in order to protect” a “legal interest [that] might be affected by a possible decision of the Court.” Id., para. 46; accordid., Application by Costa Rica for Permission to Intervene Costa Rica, para. 33.

⁴⁷ See id., Application by Costa Rica for Permission to Intervene, para. 55 & accompanying sketch-map.

⁴⁸ See id., para. 65. Both Colombia and Nicaragua, while “differ[ing] in their assessment as to the limits of the area in which Costa Rica may have a legal interest,” nonetheless “recognize[d] the existence of Costa Rica’s interest in at least some areas claimed by the parties to the main proceedings.” Id.

⁴⁹ Id., para. 87. At the same time, the Court acknowledged, referring to its judgment in Land and Maritime Boundary Between Cameroon and Nigeria, that “in the case of maritime delimitations where the maritime areas of several States are involved, the protection afforded by Article 59 of the Statute may not always be sufficient.” Territorial and Maritime Dispute, Application by Costa Rica for Permission to Intervene, para. 85 (citing Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria; Eq. Guinea intervening), 2002 ICJ Rep. 303, para. 238 (Oct. 10)).

⁵⁰ Territorial and Maritime Dispute, Application by Costa Rica for Permission to Intervene, para. 88.

⁵¹ Id., para. 89.

⁵² Judge Donoghue argued, in part, that, even if the Court could protect third states, intervention should still be granted because Article 62 “does not require the applicant for intervention to prove that intervention is the only means by which the Court can avoid affecting an interest of a legal nature.” Id., Diss. Op. Donoghue, J., para. 6; accord id.. Application by Honduras for Permission to Intervene, Diss. Op. Donoghue, J., para. 14. Judge Al-Khasawneh emphasized that Article 62 provides a different form of protection from Article 59 and so the latter cannot substitute for the former. Id., Application by Costa Rica for Permission to Intervene, Diss. Op. Al-Khasawneh, J., para. 11. Judge Abraham similarly pointed out that despite the Court’s attempt to shield third states in its decision on the merits, if the Court does not receive the more detailed information that intervention provides, it will be unable to accomplish that very goal. Id., Diss. Op. Abraham, J., para. 12.

⁵³ Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), 2007 ICJ Rep. 659 (Oct. 8).

⁵⁴ Unlike its judgment on Costa Rica’s request, which assumed a legal interest and then focused on effect, the Court did not distinguish the issue of Honduras’s “legal interest” from that of whether that interest would be affected by the decision in the case.

⁵⁵ The eastern edge of the area claimed by Honduras is, for expositional purposes, somewhat simplified here. More precise measurements can be found in the Court’s judgment. See Territorial and Maritime Dispute, Application by Honduras for Permission to Intervene, para. 57.

⁵⁶ Id., para. 64 (quoting Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea). The Court noted that its prior decision was res judicata and that its reasoning in that judgment was important to a proper understanding of the dispositif. Id., para. 70.

⁵⁷ See id., pata. 73. Judge Abraham, in his dissenting opinion, stated that Honduras’s application to intervene as a nonparty should have been granted for two reasons: first, because the decision in the main proceedings may fix the endpoint of the bisector line established in the Court’s 2007 judgment, and second, because the decision may affect Honduras’s ability to claim territory granted to it by the 1986 treaty. Id., Diss. Op. Abraham, J., paras. 27-35. Judge Donoghue, in her dissenting opinion, similarly argued that the existence of overlapping bilateral claims (Hon duras v. Colombia; Nicaragua v. Colombia) in the same area, as well as the possibility that the Court’s decision could effectively set the endpoint to the 2007 judgment’s line, established a sufficient legal interest to grant Honduras’s application. Id., Diss. Op. Donoghue, J., paras. 43-49.

⁵⁸ Previously, a chamber of the Court granted Nicaragua’s application in part in Land, Island and Maritime FrontierDispute, Application by Nicaragua for Permission to Intervene, 1990 ICJ Rep., para. 105, and the full Court granted Equatorial Guinea’s application in Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria), Application by Equatorial Guinea for Permission to Intervene, 1999 ICJ Rep. 1029, para. 18 (Oct. 21).

⁵⁹ See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), Application by the Philippines for Permission to Intervene, 2001 ICJ Rep. 575, 630, para. 20 (Oct. 23) (Sep. Op. Weeramantry, J. ad hoc).

⁶⁰ These judges thought that those two concepts were effectively one and the same. See, e.g., Territorial and Maritime Dispute, Application by Costa Rica for Permission to Intervene, Diss. Op. Al-Khasawneh, J.; Deci. Keith, J.; id., Application by Honduras for Permission to Intervene, Deci. Al-Khasawneh, J.; Deci. Keith, J. A judge may have disagreed with the Court’s distinction and still have favored a liberal approach to intervention. See, e.g., id., Application by Costa Rica for Permission to Intervene, Diss. Op. Al-Khasawneh, J.

⁶¹ Indeed, as Judge Abraham pointed out in his dissenting opinion on Costa Rica’s request for permission to intervene, given the techniques maintained by the Court to ensure that its judgment in the main proceedings does not affect the interests of third states, “on voit mal dans quelle circonstance la Cour autoriserait jamais, à l’avenir, l’intervention d’un Etat tiers dans une affaire de délimitation maritime.” Id., Application by Costa Rica for Per mission to Intervene, Diss. Op. Abraham, J., para. 26. As several judges pointed out, the Court’s rulings have had the practical effect of establishing a mechanism for third states to submit information about their legal interests that may be affected by the Court’s decision—the filing of an application to intervene that the Court will reject—but the mechanism is highly inefficient (requiring oral proceedings, per Article 84 of the Rules of Court, if there is an objection), thereby delaying the resolution of the main case and increasing the costs of the proceedings to the parties. See id., para. 12; id., Deci. Gaja, J. ad hoc, para. 4; id., Application by Honduras for Permission to Intervene, Diss. Op. Donoghue. J., para. 58. If the Court continues to be reluctant to grant interventions, then, as Judge Donoghue and Judge ad hoc Gaja suggested, it might consider instituting a new procedure to allow for the more efficient submission of relevant information by nonparties. Id., para. 59; id., Application by Costa Rica for Permission to Intervene, Deci. Gaja, J. ad hoc, para. 5.

⁶² See infra note 115 and accompanying text.

⁶³ Interestingly, throughout its judgment, the Court referred to the parties as “the Applicant” and “the Respon dent” instead of using their names, its usual practice.

⁶⁴ 1891 UNTS 3,7.

⁶⁵ The Court’s jurisdiction was founded on Article 21, paragraph 2, of the Interim Accord. The paragraph provides: “Any difference or dispute that arises between the Parties concerning the interpretation or implementation of this Interim Accord may be submitted by either of them to the International Court of Justice, except for the difference referred to in Article 5, paragraph 1.” Id. at 10. Greece had informed the Court that, while it considered that the Court manifestly lacked jurisdiction, it would not raise preliminary objections pursuant to Article 79 of the Rules of Court. Instead, it would address those issues together with the merits. Greece stated that it proceeded in this manner so that the Court would not be “precluded from examining any part of the substantive record that could illuminate issues of jurisdiction and admissibility.” Verbatim Record, Application of the Interim Accord of 13 September 1995, ICJ Doc. Cr 2011/8, at 46-47.

⁶⁶ If it had, the Court’s jurisdiction would have been precluded by Article 21, paragraph 2, of the Interim Accord.

⁶⁷ Consequently, the rule in Monetary Gold Removed from Rome in 1943 (It. v. Fr., Uk & U.S.), Preliminary Question, 1954 ICJ Rep. 19, 32-33 (June 15), did not apply.

⁶⁸ Northern Cameroons (Cameroon v. UK), Preliminary Objections, 1963 ICJ Rep. 15, 34 (Dec. 2).

⁶⁹ Application of the Interim Accord of 13 September 1995, para. 51. The Court also disagreed with Greece’s claim that the Court’s judgment would interfere with the diplomatic process set out by the Security Council in its Resolutions 817 (Apr. 7, 1993) and 845 (June 18, 1993).

⁷⁰ Judge Simma appended a separate opinion; Judge Bennouna and Judge ad hoc Vukas appended declarations; and Judge Xue and Judge ad hoc Roucounas appended dissenting opinions. Judge Al-Khasawneh did not participate in the judgment. See infra notes 158-59. The Court included Judges ad hoc Roucounas (appointed by Greece) and Vukas (appointed by the Fyrom).

⁷¹ Application of the Interim Accord of 13 September 1995, paras. 81-82.

⁷² Id., para. 103.

⁷³ Id., para. 111. Article 22 provides: “This Interim Accord is not directed against any other State or entity and it does not infringe on the rights and duties resulting from bilateral or multilateral agreements already in force that the Parties have concluded with other States or international organizations.”

⁷⁴ See Application of the Interim Accord of 13 September 1995, para. 153. In its discussion of the alleged breach of Article 5, paragraph 1, the Court helpfully elaborated on the duty to negotiate in good faith. See id., paras. 131- 32.

⁷⁵ The Court also “consider[ed] that this incident cannot be regarded as a material breach with the meaning of Article 60” of the Vienna Convention on the Law of Treaties. Id., para. 163.

⁷⁶ See id., para. 161. Judge Simma, in his separate opinion, and Judge Bennouna, in his declaration, criticized the Court for not taking up the exceptio question. Judge Simma would have found that no such principle exists in contemporary international law. Judge Bennouna would have recognized a limited principle. Judge ad hoc Roucounas, in his dissenting opinion, describes the exceptio principle as “si juste et si equitable qu’on le retrouve d’une façon ou d’une autre dans tous les systèmes juridiques,” including in contemporary international law. Id., Diss. Op. Roucounas, J. ad hoc, para. 66.

⁷⁷ See Application of the Interim Accord of 13 September 1995, Judgment, para. 168. In his declaration Judge ad hoc Vukas disagreed with the Court’s refusal to order Greece to refrain from any future conduct in violation of its obligations under Article 11(1) of the Interim Accord.

⁷⁸ Id. Judgment, para. 168 (quoting Navigational and Related Rights (Costa Rica v. Nicar.), 2009ICJ Rep. 213, para. 150 (July 13)).

⁷⁹ Indeed, as the secretary general of Nato stated after the Court issued its judgment:

The ruling does not affect the decision taken by NATO allies at the Bucharest summit in 2008. We agreed that an invitation will be extended to the former Yugoslav Republic of Macedonia as soon as a mutually acceptable solution to the name issue has been reached. This decision was reiterated at subsequent summit and ministerial meetings.

Statement of the NATO Secretary General on ICJ Ruling (Dec. 5, 2011) (footnote omitted), at http://www. nato.int/cps/en/natolive/news_81678.htm.

⁸⁰ Application by Costa Rica, para. 41, Certain Activities Carried Out by Nicaragua in the Border Area, Pro visional Measures. It has been suggested that the Nicaraguán presence in me territory was due to an error in Google Maps. See Jacobs, Frank, The First Google Maps War, N.Y. Times Borderlines Blog (Feb. 28, 2012)Google Scholar, at http://opinionator.blogs.nytimes.com/2012/02/28/the-first-google-maps-war/. Nicaragua denies any such error.

⁸¹ See Provisional Measures Request by Costa Rica, para. 19, Certain Activities Carried Out by Nicaragua in the Border Area.

⁸² Certain Activities Carried Out by Nicaragua in the Border Area, Provisional Measures, para. 86(1). The Court included Judges ad hoc Dugard (appointed by Costa Rica) and Guillaume (appointed by Nicaragua).

⁸³ Id., para. 86(2).

⁸⁴ [Author’s note: Convention on Wetlands of International Importance, Especially as Waterfowl Habitat, Feb. 2, 1971, TIAS No. 11, 084, 996 UNTS 245.]

⁸⁵ Certain Activities Carried Out by Nicaragua in the Border Area, para. 86(2). Voting in favor were President Owada and Vice-President Tomka; Judges Koroma, Al-Khasawneh, Simma, Abraham, Keith, Bennouna, Caneado Trindade, Yusuf, Greenwood, and Donoghue; and Judge ad hoc Dugard. Voting against were Judges Sepúlveda-Amor, Skotnikov, and Xue, and Judge ad hoc Guillaume. The dissenting judges did not agree with the Court’s decision to allow Costa Rican, but not Nicaraguán, personnel into the disputed territory. Doing so, they argued, gave the appearance of prejudging the merits, as a state can have obligations regarding territory (such as the wetland at issue) only if it maintains sovereignty over that territory. Instead, to the dissenters, both parties should have been required to protect the wetland and to consult with the Ramsar Convention secretariat. See id., Decl. Skotnikov, J., paras. 12-13; Sep. Op. Sepúlveda-Amor, J., para. 34; Decl. Xue, J.; Decl. Guillaume, J. ad hoc, para. 19. For the Court’s view, see infra note 98 and accompanying text.

⁸⁶ Certain Activities Carried Out by Nicaragua in the Border Area, Provisional Measures, para. 86(3).

⁸⁷ Id., para. 86(4). Judges Koroma and Sepúlveda-Amor, and Judge ad hoc Dugard appended separate opinions. Judges Skotnikov, Greenwood, and Xue, and Judge ad hoc Guillaume appended declarations.

⁸⁸ See id., para. 51.

⁸⁹ American Treaty on Pacific Settlement (“Pact of Bogota”), 30 UNTS 84, 94.

⁹⁰ Certain Activities Carried Out by Nicaragua in the Border Area, Provisional Measures, para. 49.

⁹¹ Id., para. 53.

⁹² Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Provisional Measures, 2009 ICJ Rep. 139, para. 56 (May 28) (“Whereas the power of the Court to indicate provisional measures should be exercised only if the Court is satisfied that the rights asserted by a party are at least plausible.” (emphasis added)). This tentative language, though, was enough to spur the parties in Certain Activities to make arguments regarding plausibility during the oral proceedings. See Verbatim Record, Certain Activities Carried Out by Nicaragua in the Border Area, Provisional Measures, ICJ Docs. Cr 2011/1-CR 2011/4.

⁹³ Id., para. 57.

⁹⁴ See Certain Activities Carried Out by Nicaragua in the Border Area, Provisional Measures, paras. 58-62.

⁹⁵ Id., para. 74.

⁹⁶ This was so even though Nicaragua stated that none of its troops were then in the disputed territory and that it did not intend to send troops or other personnel there, aside from persons replanting trees or government inspectors who would monitor the reforestation. Id., paras. 71-72.

⁹⁷ It appears that the Court’s excepting such personnel was based, at least in part, upon a January 2011 report of a Ramsar Advisory Mission (requested by Costa Rica) that described the risk of environmental damage to the area. See id., Decl. Greenwood, J., para. 13, and Misión Ramsar de Asesoramiento No. 69 (Jan. 3, 2011), at http://www.ramsar.org/pdf/ram/ram_rpt_69-CostaRica_s.pdf.

⁹⁸ See Certain Activities Carried Out by Nicaragua in the Border Area, Provisional Measures, para. 80.

⁹⁹ See id., Sep. Op. Koroma, J.; Sep. Op. Sepúlveda-Amor, J.

¹⁰⁰ Id., Sep. Op. Sepúlveda-Amor, J., paras. 3, 15. Though Judge Supúlveda-Amor did not mention it, some evidence of this possibility could be seen in the oral proceedings in this case. See supra note 92.

¹⁰¹ Id., Decl. Greenwood, J., para. 5. Judge Sepúlveda-Amor agreed that plausibility “should not be read as introducing a new requirement” but “as an attempt... to ‘name’ or ‘label’ a requirement already implicit in the Court’s case law.” Id., Sep. Op. Sepúlveda-Amor, J., para. 16.

¹⁰² Passage Through the Great Belt (Fin. v. Den.), Provisional Measures, 1991 ICJ Rep. 12, 28 (July 29) (sep. op. Shahabuddeen, J.).

¹⁰³ Pulp Mills on the River Uruguay (Arg. v. Ur.), Provisional Measures, 2006 ICJ Rep. 113, 137, para. 1 (July 13) (sep. op. Abraham, J.); id., 2006 ICJ Rep. at 142 (sep. op. Bennouna, J.). For a discussion of Judge Abraham’s separate opinion, see Mathias, D. Stephen, The 2006 Judicial Activity of the International Court of Justice, 101 AJIL 602, 610-11 (2007)Google Scholar.

¹⁰⁴ Pulp Mills on the River Uruguay, Provisional Measures, 2006 ICJ Rep. at 137, para. 11 (sep. op. Abraham, J.). It is interesting to note that French was the authoritative language of the Court’s provisional measures order in Questions Relating to the Obligation to Prosecute or Extradite, in which it first used the word “plausible.” 2009 ICJ Rep., para. 76.

¹⁰⁵ Pulp Mills on die River Uruguay, Provisional Measures, 2006 ICJ Rep. at 137, para. 2. (sep. op. Abraham, J.).

¹⁰⁶ Situation in the Border Area Between Costa Rica and Nicaragua, OAS Doc. CP/Res. 978, para. 1 (1777/10) (Nov. 12, 2010) [hereinafter Permanent Council Resolution].

¹⁰⁷ Certain Activities Carried Out by Nicaragua in the Border Area, para. 16.

¹⁰⁸ The Court’s directive that the parties’ “police and security forces [shall] co-operate with each other in a spirit of good neighbourliness, in particular to combat any criminal activity which may develop in the disputed territory” also resembled the Permanent Council’s instruction that the parties should “review and strengthen cooperation mechanisms ... in order to prevent, control, and confront” criminal activity. Compare Certain Activities Carried Out by Nicaragua in the Border Area, para. 78, with Permanent Council Resolution, supra note 106, para. 1.

¹⁰⁹ OAS Secretary General Welcomes International Court’s Ruling in Costa Rica–Nicaragua Case, Oas Press Release E-557/11 (Mar. 8, 2011).

¹¹⁰ Judge Cançado Trindade appended a separate opinion, and Judge ad hoc Gaja appended a declaration. Judge ad hoc Gaja had been appointed by Italy.

¹¹¹ Observations of Greece in Reply to the Written Observations of Germany and Italy, para. 5, Jurisdictional Immunities of the State, Application by Greece for Permission to Intervene.

¹¹² Jurisdictional Immunities of the State, Application by Greece for Permission to Intervene, para. 5.

¹¹³ Written Observations of the Federal Republic of Germany on the Application for Permission to Intervene Filed by Greece, Jurisdictional Immunities of the State; Additional Observations of Germany, para. 4, Jurisdictional Immunities of the State. Germany could have objected for the reasons it gave in its written observations. That it did not can be interpreted as a strategic move, perhaps one made to ensure the expeditious conclusion to the proceedings.

¹¹⁴ Jurisdictional Immunities of the State, Application by Greece for Permission to Intervene, para. 22.

¹¹⁵ Id., para. 24.

¹¹⁶ Id., para. 25.

¹¹⁷ Id., para. 32.

¹¹⁸ See supra note 58 and accompanying text.

¹¹⁹ Land, Island and Maritime Frontier Dispute (El Sal./Hond.), Application by Nicaragua for Permission to Intervene, 1990 ICJ Rep. 92, para. 96 (Sept. 13).

¹²⁰ The Court has acknowledged that opposition of the parties is “very important,” but it has also indicated that such opposition is “no more than one element to be taken into account by the Court.” Continental Shelf (Libya/Malta), Application by Italy for Permission to Intervene, 1984 ICJ Rep. 3, para. 46 (Mar. 21).

¹²¹ Land and Maritime Boundary Between Cameroon and Nigeria, Application by Equatorial Guinea for Per mission to Intervene, 1999 ICJ Rep., paras. 12, 16, 18. Indeed, in its earlier judgment on preliminary objections, the Court had all but invited Equatorial Guinea (and Sao Tome and Principe) to intervene. See Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, 1998 ICJ Rep. 275, para. 116 (June 11).

¹²² See Jurisdictional Immunities of the State, Application by Greece for Permission to Intervene, para. 6; Rules of Court, Art. 84(2).

¹²³ Jurisdictional Immunities of the State, Application by Greece for Permission to Intervene, Decl. Gaja, J. ad hoc, para. 2 (“Italy is free in its relations with Greece to apply its domestic legislation on the recognition and enforcement of foreign judgments and to grant or refuse enforcement for reasons of its own choice.”).

¹²⁴ Jurisdictional Immunities of the State, Application by Greece for Permission to Intervene, para. 25 (emphasis added).

¹²⁵ Judge Sepúlveda-Amor did not participate in the decision. The Court included Judges ad hoc Cot (appointed by Thailand) and Guillaume (appointed by Cambodia).

¹²⁶ This was only me fifth time that the Court has been asked to render an interpretation in accord with Article 60.

¹²⁷ Temple of Preah Vihear (Cambodia v. Thai.), 1962 ICJ Rep. 6, 37 (June 15).

¹²⁸ Application by Cambodia, para. 45, Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures. Cambodia included what became known as the “Annex I map” in its application instituting proceedings against Thailand on October 6,1959. It was then incorporated by reference in Cambodia’s memorial.

¹²⁹ Provisional Measures Request by Cambodia, para. 3, Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand). In particular, Cambodia requested that the Court order Thailand to “immediate[ly] and unconditional[ly] withdraw[]. . . all [its] forces from those parts of Cambodian territory situated in the area” of the temple, to cease “all military activity” in that area, and to “refrain from any act or action which could interfere with the rights of Cambodia or aggravate the dispute in the principal proceedings.” Id., para. 8.

¹³⁰ See Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures, para. 15 (“[T]he Court’s jurisdiction on the basis of Article 60 of the Statute is not preconditioned by the existence of any other basis of jurisdiction as between the parties to the original case.”).

¹³¹ Id, para. 21.

¹³² Id., para. 31 (noting that the disputes concerned “the meaning and scope ofthe phrase ‘vicinity on Cambodian territory’”; “the nature of the obligation imposed on Thailand... to ‘withdraw any military or police forces, or other guards or keepers,’ and, in particular, . . . the question of whether this obligation is of a continuing or an instantaneous character”; and “the question of whether the Judgment did or did not recognize with binding force the line shown on the annex I map as representing the frontier between the two Parties”).

¹³³ Id., para. 33.

¹³⁴ Id., paras. 39-40.

¹³⁵ Id., para. 45.

¹³⁶ Id., para. 47.

¹³⁷ Id., para. 56.

¹³⁸ Id., paras. 58-59.

¹³⁹ Id.,, para. 69(B)(1). Voting in favor were Vice-President Tomka; Judges Koroma, Simma, Abraham, Keith, Bennouna, Skotnikov, Caneado Trindade, Yusuf, and Greenwood; and Judge ad hoc Guillaume. Voting against were President Owada; Judges Ai-Khasawneh, Xue, and Donoghue; and Judge ad hoc Cot. Judge Koroma and Judge ad hoc Guillaume attached declarations; Judge Caneado Trindade appended a separate opinion; President Owada, Judges Al-Khasawneh, Xue, and Donoghue, and Judge ad hoc Cot appended dissenting opinions.

¹⁴⁰ Id., paras. 69(B)(2)–(4), 69(C).

¹⁴¹ The first time was in 2008 in Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mex. v. U.S.), Provisional Measures, 2008 ICJ Rep. 311 (July 16).

¹⁴² Security Council Press Statement, UN DOC. Sc/10174 (Feb. 14, 2011).

¹⁴³ Id.

¹⁴⁴ Id.

¹⁴⁵ Statement by the Chairman of the Association of Southeast Asian Nations (Asean) Following the Informal Meeting of the Foreign Ministers of Asean (Feb. 22, 2011), at http://www.aseansec.org/documents/N110222.pdf.

¹⁴⁶ Certain Activities Carried Out by Nicaragua in the Border Area, Provisional Measures, para. 86(1).

¹⁴⁷ Frontier Dispute (Burkina Faso/Mali), Provisional Measures, 1986 ICJ Rep. 3, para. 32(1)(D) (Jan. 10); cf. Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, 1996 ICJ Rep. 13, para. 49 (Mar. 15) (ordering the parties to “ensure that the presence of any armed forces in the Bakassi Peninsula does not extend beyond the positions in which they were situated prior to 3 February 1996”—that is, the ceasefire line of February 1994).

¹⁴⁸ Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures, para. 62.

¹⁴⁹ In his declaration, Judge Koroma stated that “the Court decided to create a provisional demilitarized zone of a size adequate to minimize the risk of further armed clashes—including shelling—in the disputed area.” Id., Decl. Koroma, J., para. 3. In his dissenting opinion, President Owada noted the argument, with which he did not agree, that “given the unique geomorphological characteristic of the terrain involved, the demilitarization of the territory in dispute between the Parties may be extremely difficult, if not impossible, to enforce, whereas this artificially created demilitarization zone takes into account the specific topographical features of the area and is therefore more amenable to effective enforcement.” Id., Diss. Op. Owada, P., para. 14.

¹⁵⁰ Id., Diss. Op. Cot, J. ad hoc, paras. 22-23.

¹⁵¹ Id., Diss. Op. Owada, P., para. 10; Diss. Op. Al-Khasawneh, J.; Diss. Op. Xue, J.; Diss. Op. Donoghue, J., para. 27.

¹⁵² Id., Diss. Op. Donoghue, J., para. 28.

¹⁵³ See List of Candidates Nominated by National Groups: Note by the Secretary-General, UN Doc. A/66/183–S/2011/453 (July 26, 2011); Election of Five Members of the International Court of Justice: Curricula Vitae of Candidates Nominated by National Groups: Note by the Secretary-General, UN Doc. A/66/184*–S/2011/454* (July 26, 2011).

¹⁵⁴ See ICJ Press Release No. 2011/34 (Nov. 11,2011); UN Docs. GA/11171 (Nov. 10,2011), SC/10444 (Nov. 10, 2011), S/PV.6655 (Nov. 10, 2011), S/PV.6654 (Nov. 10, 2011), S/PV.6653 (Nov. 10, 2011), S/PV.6652 (Nov. 10, 2011) & S/PV.6651 (Nov. 10, 2011).

¹⁵⁵ The two other candidates who had not yet been elected—Tsvetana Kamenova (Bulgaria) and El Hadji Mansour Tall (Senegal)—withdrew after the second round of balloting. Merits aside, their candidacies did not conform to the informal allocation of seats on the Court. See Jacob Cogan, Katz, Representation and Power in International Organization: The Operational Constitution and Its Critics, 103 AJIL 209, 231 (2009)CrossRef Google Scholar.

¹⁵⁶ UN Docs. Ga/11178 (Nov. 22,2011), SC/10456 (Nov. 22,2011), S/PV.6667 (Nov. 22,2011), S/PV.6666 (Nov. 22, 2011) & S/PV.6665 (Nov. 22, 2011).

¹⁵⁷ ICJ Press Release 2011/39 (Dec. 15, 2011); UN Docs. GA/11194 (Dec. 13, 2011), SC/10482 (Dec. 13, 2011) & S/PV.6682 (Dec. 13, 2011).

¹⁵⁸ See Letter of Designation to Awn Khasawneh (Oct. 17, 2011), at http://www.kingabdullah.jo/index.php/en_us/toyalLetters/view/id/297.html; see also Kadri, Ranya & Bronner, Ethan, Government of Jordan Is Dismissed by the King, N.Y. Times, Oct. 18, 2011 Google Scholar, at A8.

¹⁵⁹ Note by the Secretary-General Concerning the Date of an Election to Fill a Vacancy in the International Court of Justice, UN Doc. S/2012/38 (Jan. 17, 2012); ICJ Press Release 2012/1 (Jan. 20, 2012). In light of the Statute’s prohibition on the “exercise” by a “member of the Court [of] any political or administrative function,” it is unclear why Judge Al-Khasawneh submitted his letter of resignation more than a month following his designation as prime minister and with effect more than two months after the appointment. ICJ Statute, Art. 16(1). Though his resignation had not yet become effective, Judge Al-Khasawneh did not participate in the Court’s judgment in Application of the Interim Accord of 13 September 1995.

¹⁶⁰ The addresses are available online at http://www.icj-cij.org/court/index.php?p1=1&p2=3&p3=1. For the debate in the General Assembly on the Court’s Annual Report, see UN GAOR, 66th Sess., 43th plen. mtg., UN Doc. A/66/PV.43 (Oct. 26, 2011); UN Doc. GA/11163 (Oct. 26, 2011). For the discussion in the Sixth Committee of the president’s speech, see Press Release, Legal Committee Delegates Suggest Flaws in International Law Commission Proposals, Suggest Possible Adjustments, UN Press Release GA/L/3424 (Oct. 28, 2011). As is traditional, the Security Council issued an “official communiqué” noting that “Members of the Council and Judge Owada had an exchange of views.” UN Doc. S/PV.6637 (Oct. 25, 2011).

¹⁶¹ Speech to General Assembly 13.

¹⁶² Statement to the Security Council 1.

¹⁶³ Id. at 11.

¹⁶⁴ These were in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.) (on Costa Rica’s request for provisional measures), Application of the Interim Accord of 13 September 1995 (Former Yugoslav Republic of Maced. v. Greece) (on jurisdiction, admissibility, and the merits), Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thai.) (on Cambodia’s request for provisional measures), and Jurisdictional Immunities of the State (Ger. v. It.; Greece intervening) (on the merits).

¹⁶⁵ These were Jurisdictional Immunities of the State (Ger. v. It.) (application by Greece for permission to intervene), Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thai.) (requesting an interpretation of 1962 judgment and the indication of provisional measures), and Construction of a Road in Costa Rica Along the San Juan River (Nicar. v. Costa Rica) (alleging that Costa Rica, by constructing a road along the San Juan River, has breached its obligations not to violate Nicaragua’s territorial integrity, its obligations not to damage Nicaraguán territory, and its obligations under general international law and international environmental conventions).

¹⁶⁶ This was Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belg. v. Switz.). See Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belg. v. Switz.), Removal from List (Int’l Ct. Justice Apr. 5, 2011). Belgium had instituted proceedings on December 21, 2009, and filed its memorial on November 23, 2010. On February 18, 2011, in accordance with Article 79(1) of the Rules of Court, Switzerland submitted preliminary objections to the jurisdiction of the Court and to the admissibility of the application. On March 21, 2011, in a letter quoted in the April 5 order removing the case from the list, Belgium informed the Court that, “in concert with the Commission of the European Union, [it] considers that it can discontinue the proceedings.” It did so because Switzerland, in its preliminary objections, had, according to Belgium,

indicate[d] that the reference by the [Swiss] Federal Supreme Court in its 30 September 2008 judgment to the non-recognizabiliry of a future Belgian judgment [did] not have the force of res judicata and [did] not bind either the lower cantonal courts or the Federal Supreme Court itself, and that there [was] therefore nothing to prevent a Belgian judgment, once handed down, from being recognized in Switzerland in accordance with the applicable treaty provisions.

Switzerland did not oppose the request for the discontinuance.

¹⁶⁷ Diallo, Fixing of Time Limits (Sept. 20, 2011).

¹⁶⁸ Report of the International Court of Justice, Aug. 1, 2010–July 31, 2011, UN GAOR, 66th Sess., Supp. No. 4, at 2 n.l, 22 & 25-26, UN Doc. A/66/4 (2011).

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