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References
I.C.J., Reports 2004.
Ibid., para. 100.
Ibid., para. 101.
Ibid.
Ibid.
Ibid., para. 102.
Ibid., para. 103.
Cf. ibid., para. 104.
Ibid., para. 105.
Ibid., para. 107.
Ibid., para. 108.
Cf. P.C.I.J., 1923, Series A, No. 1, p. 6.
Cf. P.C.I.J., 1925, Series A, No. 6.
P.C.I.J., 1925, Series A, No. 6, p. 11.
P.C.I.J., Annual Report of the Permanent Court of International Justice (1 January 1922–15 June 1925), Series E, No. 1, p. 261.
P.C.I.J., Acts and Documents (1926), Series D, No. 2, Add., p. 106.
I.C.J., case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium), Reports 2004, para. 110.
Ibid.
Ibid. The I.C.J. adds: “He then proposed that Article 35 be adopted as it stood; no further substantive discussion followed, and Article 35 was adopted”.
The Egyptian proposal was not pursued but the essence of it was reflected in Article 93, paragraph 2, of the Charter (cf. ibid. para. 112).
Ibid. para. 113.
Ibid.
Cf. ibid. para. 114.
See Reports 1974, p. 263. To support its reasoning the I.C.J. quotes jurisprudence of the P.I.C.J. as well as its own jurisprudence (see ibid.). Another example is given by the Minquiers and Ecrehous case in which, starting from the interpretation the Court made of the petitions of the Parties it concluded that these excluded the statute of res nullius as well as that of condominium (cf. I.C.J., Reports 1953, p. 52). Similarly, but more recently, see the case concerning the Frontier Dispute (I.C.J., Reports 1986, p. 573).
I.C.J., Reports 1995, pages 305–306.
The Chamber judged that sovereignty over the island belongs to Honduras (Cf. I.C.J., Reports 1992, p. 570).
I.C.J., Reports 1998, paragraph 30. See also paragraphs 30 and 31 where it states that the Court will not confine itself to the formulation by the Applicant when determining the subject of the dispute and that the Court will itself determine the real dispute that has been submitted to it. This is stated quoting its case law.
I.C.J., Reports 1980, p. 88.
Ibid., p. 89. The cases of the P.I.C.J. quoted by the I.C.J. are: Jaworzina (P.C.I.J., Series B No. 8, p. 282); Interpretation of the Greco-Turkish Agreement of 1 December 1926 (P.C.I.J., Series B No. 16, pages 5–16).
Jennings, R., “The role and functioning of the Court”, I.C.J., Yearbook 1991–1992, No. 46, The Hague, 1992, p. 209.
I.C.J., Reports 1974, pages 262 and 269.
“If, however, the Court lacks the power to reformulate inadequate submissions, a fortiori it cannot reformulate submissions as clear and specific as those in this case” (ibid., p. 316). It is the dissident opinion common to judges Onyeama, Dillard, Jimenez de Arechaga and Waldock.
Ibid., p. 317. And they add “In this instance the serious consequences have an irrevocable character because the Applicant is now prevented from resubmitting its Application and seizing the Court again by reason of France’s denunciation of the instruments on which it is sought to base the Court’s jurisdiction in the present dispute” (ibid.).
I.C.J., Reports 1962, p. 157.
On this question see the report of the I.C.J.’ President at the 44th meeting of the forty-sixth session of the General Assembly, held on 8 November 1991 (I.C.J., Yearbook 1991–1992, No. 46, The Hague 1992, pages 205–212).
The Court stated that neither its Statute nor its Rules require that this consent shall be expressed in a certain form. Consequently, the Court cannot hold it to be irregular “a proceeding which is not precluded by any provision in these texts” (The Corfu Channel Case, I.C.J., Reports 1947–48, p. 28. Cf. also p. 26). In this case, the proceeding was the letter of the Minister of Foreign Affairs of Albania of 2 July 1947.
I.C.J., Reports 1953, p. 119. Cf. also the case law of the I.C.J. in the following cases: Reparation for Injuries Suffered in the Service of the United Nations (I.C.J., Reports 1949, p. 178); Anglo-Iranian Oil Company (I.C.J., Reports 1952, pages 102–103); and Monetary Gold Removed from Rome (I.C.J., Reports 1954, p. 32).
Ibid.
I.C.J., Reports 1947–48, p. 26. Afterwards, it states that it is for the Court “to decide, with binding force as between the parties, what the interpretation of the letter of July 2nd, 1947 is” (ibid., p. 28).
I.C.J., p. 33, para. 116.
Ibid., p. 27, para. 99.
Ibid., p. 28, para. 100. Emphasis added by the Court.
Ibid.
Ibid. Emphasis also added by the Court.
According to the United States, “the use in the English version of “indicate” instead of “order”, of “ought” instead of “must” or “shall”, and of “suggested” instead of “ordered”, is to be understood as implying that decisions under Article 41 lack mandatory effect”. Nevertheless the Court added that, having regard to the fact that in 1920 the French text was the original version, “such terms as “indicate” and “ought” have a meaning equivalent to “order” and “must” or “shall”” (ibid.).
Ibid., p. 28, para. 101.
Ibid. This provision reads: “when a comparison of the authentic texts discloses a difference of meaning which the application of Articles 31 and 32 does not remove the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted”.
Ibid., para. 102.
Ibid.
P.C.I.J, Series A/B, No. 79, p. 199.
The Court quotes the followings: Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, I.C.J., Reports 1973, p. 106; Nuclear Tests (New Zealand) v. France, Interim Protection, Order of 22 June 1973, I.C.J., Reports 1973, p. 142; Frontier Dispute, Provisional Measures, Order of 10 January 1986, I.C.J., Reports 1986, p. 9, para. 18, and p. 11, para. 32, point 1 A; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J., Reports 1993, p. 23, para. 48, and p. 24, para. 52 B; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J., Reports 1993, p. 349, para. 57, and p. 350, para. 61 (3); Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I.C.J., Reports 1996 (I), pp. 22–23, para. 41, and p. 24, para. 49 (1), (ibid., p. 29, para. 103).
What includes the proposal of Fernandes as well as the works of the Drafting Committee, the Committee of Jurists and the Sub-Committee of the Third Committee of the first Assembly of the League of Nations (cf. ibid., pp. 29–30, para. 105–106).
Ibid., p. 30, para. 107.
Ibid., p. 31, para. 108.
Ibid.
Ibid., p. 31, para. 109.
Ibid., p. 12, para. 32.
Cf. ibid., p. 31, para. 110.
In opinion of the Court the same is also true of the United States Solicitor General’s categorical statement in his brief letter to the United States Supreme Court (cf. ibid., p. 32, para. 112).
Ibid., p. 32, para. 115.
I.C.J., Reports 1950, p. 71.
Ibid., p. 72.
This jurisprudence is repeated by the I.C.J. in more recent cases, in which it underlines the discretional character of its jurisdiction and specifies that it is for it to maintain it “unimpaired”, and there are no restrictions to the discretionary power of the Court to give advisory opinions. So, for example, in its Advisory Opinion concerning Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal from Article 65 of the Statute of the I.C.J. (cf. I.C.J, Reports 1982, p. 347). Cf. ibid., pages 337 and 347.
I.C.J., Reports 1996, pages 66–85.
Ibid., p. 73.
I.C.J., Reports 1996, p. 74.
Ibid.
Ibid., p. 75.
Ibid., p. 76.
Ibid.
Ibid.
Ibid., p. 77.
I.C.J., Reports 1996, pages 226–267. See Akande, D., “The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice”, E.J.I.L., Vol. 9 (1998) No. 3, pp. 437–467.
Ibid., p. 78. The Court also says: “The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments” (ibid., p. 79).
Principle applied before to the International Labour Organization and to the United Nations (see Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J., Reports 1949, pages 182–183, and the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J., Reports 1954, p. 57).
Ibid., p. 79.
Ibid.
Ibid., p. 80.
Ibid.
Ibid. “For all these reasons, the Court considers that the question raised in the request for an advisory opinion submitted to it by the WHO does not arise ‘within the scope of (the) activities’ of that Organization as defined by its Constitution” (ibid., p. 81).
Ibid.
Ibid., pages 83–84.
Ibid., p. 83.
Ibid., p. 347.
Cf. ibid.
Cf. ibid.. Moreover, in this case, this refusal “would leave in suspense a very serious allegation against the Administrative Tribunal, that it had in effect challenged the authority of the General Assembly” (ibid.).
Ibid., para. 13.
I.C.J., advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 44.
See I.C.J., Reports 1996 (I), p. 235, para. 14.
See P.C.I.J., Series B, No. 5.
I.C.J., advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 44.
Ibid., para. 45.
In the words of the I.C.J.: “It is... a precondition of the Court’s competence that the advisory opinion be requested by an organ duly authorized to seek it under the Charter, that it be requested on a legal question, and that, except in the case of the General Assembly or the Security Council, that question should be one arising within the scope of the activities of the requesting organ’. (Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J., Reports 1982, pp. 333–334, para. 21.)” (ibid., para. 14).
It was so in the following cases: Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, I.C.J., Reports 1950, p. 70; Legality of the Threat or Use of Nuclear Weapons, I.C.J., Reports 1996 (I), pp. 232 and 233, paras. 11 and 12).
See Western Sahara, Advisory Opinion, I.C.J., Reports 1975, p. 18, para. 15. See also the advisory opinion about the Difference relating to immunity from legal process of a Special Rapporteur of the Commission on Human Rights (I.C.J., Reports 1999, paras. 26 and 27).
I.C.J., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 37.
Ibid., para. 38.
See P.C.I.J., Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article IV), Advisory Opinion (P.C.I.J., Series B, No. 16(I), 1928, pp. 14–16).
See I.C.J., Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J., Reports 1980, pp. 87–89, paras. 34–36).
I.C.J., Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J., Reports 1982, p. 348, para. 46).
I.C.J., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 38. And that, in the following Opinions: Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article IV), Advisory Opinion (P.C.I.J., Series B, No. 16 (I), 1928; Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J., Reports 1980; Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J., Reports 1982; Jaworzina, Advisory Opinion, 1923, P.C.I.J., Series B, No. 8; Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion, I.C.J., Reports 1956, p. 25; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J., Reports 1962, pp. 157–162.
Like it stated in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, I.C.J., Reports 1996 (I), p. 234, para. 13). Cf. also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 38.
I.C.J., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 39.
I.C.J., case concerning the Legality of the Threat or Use of Nuclear Weapons (Reports 1996 (I), p. 236, para. 15. The Court also recalls its jurisprudence on the matter: Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, 1948, I.C.J., Reports 1947–1948, p. 61; Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J., Reports 1954, p. 51; and Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J., Reports 1971, p. 27, para. 40).
I.C.J., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 41.
Ibid., para. 41.
Ibid.
I.C.J., Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, Reports 1950, p. 71; see also Western Sahara, I.C.J., Reports 1975, p. 24, para. 31.
I.C.J., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 47.
Ibid. The Court adds: “In applying that principle to the request concerning Western Sahara, the Court found that a legal controversy did indeed exist, but one which had arisen during the proceedings of the General Assembly and in relation to matters with which the Assembly was dealing. It had not arisen independently in bilateral relations (ibid., p. 25, para. 34).
Cf. ibid. paras. 49–50.
Ibid.
I.C.J., Opinion concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (I.C.J., Reports 1951, p. 19).
I.C.J., opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (I.C.J., Reports 1971, p. 24, para. 32).
I.C.J., Western Sahara, (Reports 1975, p. 37, para. 72).
I.C.J., Legality of the Threat or Use of Nuclear Weapons (I.C.J., Reports 1996 (I), p. 237, para. 16. Also quoted in opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J., Reports 1971, p. 24, para. 61.
I.C.J., opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J., Reports 1971, p. 24, para. 62.
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(2007). Procedural Instruments, Facts Alleged and Exercise of the Jurisdiction Attributed to the I.C.J.. In: Sovereignty and Interpretation of International Norms. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-68207-3_12
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