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References
In its advisory opinion concerning the Western Sahara the Court recalls its status as a body of the United Nations and that its acts (advisory opinions and judgements) constitute a way for the I.C.J. to participate in U.N. action (cf. Reports 1975, p. 21). As regards this matter see Rosenne, S., The Law and Practice of the International Court, M. Nijhoff, Dordrecht, 1985.
I.C.J., Reports 1948, p. 61.
I.C.J., advisory opinion concerning the Western Sahara, Reports 1975, p. 20, paragraph 18.
Ibid., p. 20, paragraph 19.
In the following cases: Advisory Opinion concerning the Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter) (I.C.J., Reports 1948, p. 63), Advisory Opinion concerning the Competence of the General Assembly for the Admission of a State to the United Nations (I.C.J., Reports 1950, p. 8), Advisory Opinion concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Rumania (I.C.J., Reports 1950, p. 227), Asylum case (I.C.J., Reports 1950, p. 279), Anglo-Iranian Oil Company (I.C.J., Reports 1952, p. 104), Rights of Nationals of the United States of America in Morocco (I.C.J., Reports 1952, p. 195), the Ambatielos case (I.C.J., Reports 1952, p. 41), Advisory Opinion concerning the Admissibility of Hearings of Petitioners by the Committee on South West Africa (I.C.J., Reports 1956, p. 28), Right of Passage over Indian territory (I.C.J., Reports 1957, p. 142), Aerial incident of 27 July 1955 (I.C.J., Reports 1959, p. 142), Advisory Opinion concerning the Constitution of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization (I.C.J., Reports 1960, p. 158–161), Temple of Préah Vihear (I.C.J., Reports 1961, p. 32), South West Africa (I.C.J., Reports 1962, p. 336), Aegean Sea Continental Shelf (I.C.J., Reports 1978, p. 22, paragraph 52), Arbitration Award of 31 July 1989 (I.C.J., Reports 1991, p. 69 et seq., paragraph 48); Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) I.C.J., Reports 1992, p. 586); Maritime Delimitation in the Area between Greenland and Jan Mayen (I.C.J., Reports 1993, p. 50); Territorial Dispute (Libyan Arab Jamahiriya/Chad (I.C.J., Reports 1994, p. 22); Maritime Delimitation and Territorial Questions involving Qatar and Bahrain (I.C.J., Reports 1994, p. 121 and Reports 1995, pages 17–19); Advisory Opinion concerning Legality of the Use by a State of Nuclear Weapons in Armed Conflict,( I.C.J., Reports 1996, pages 75–76, paragraphs 19–21); Kasikili/Sedudu Island (Botswana/Namibia) (I.C.J., Reports 1999); Legality of Use of Force (Serbia and Montenegro v. Belgium) (I.C.J., Reports 2004, para.101); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), (I.C.J., Reports 2002).
In the following cases: Aerial Incident of 27 July 1955 (I.C.J., Reports 1959, p. 142), Advisory Opinion concerning the Constitution of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization (I.C.J., Reports 1960, p. 158), Advisory Opinion concerning Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (I.C.J., Reports 1962, p. 162), advisory 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. 31), Western Sahara (I.C.J., Reports 1975, p. 40, paragraph 85), Aegean Sea Continental Shelf (I.C.J., Reports 1978, p. 43, paragraph 105), Arbitration Award of 31 July 1989 (I.C.J., Reports 1991, p. 69, paragraph 48); Maritime Delimitation in the Area between Greenland and Jan Mayen (I.C.J., Reports 1993, p. 50); Territorial Dispute (Libyan Arab Jamahiriya/Chad) (I.C.J., Reports 1994, p. 25); Maritime Delimitation and Territorial Questions involving Qatar and Bahrain (I.C.J., Reports 1994, p. 119 and Reports 1995, p. 17); Advisory Opinion concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, (I.C.J., Reports 1996, pages 75–76, paragraphs 19–21); LaGrand case (Germany v. United States of America) (I.C.J., Reports 2001, para. 102); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), (I.C.J., Reports 2002).
In the following cases: Advisory Opinion concerning Reservations to the Convention on Genocide (I.C.J., Reports 1951, p. 24), Rights of Nationals of the United States of America in Morocco (I.C.J., Reports 1952, p. 196), Constitution of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organisation (I.C.J., Reports 1960, p. 170), Advisory Opinion concerning Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (I.C.J., Reports 1962, p. 158 et seq.), South West Africa (I.C.J., Reports 1962, p. 343), South West Africa (Second Phase) (I.C.J., Reports 1966, p. 48, paragraph 91), Advisory Opinion concerning the Western Sahara (I.C.J., Reports 1975, p. 40, paragraph 84); Maritime Delimitation in the Area between Greenland and Jan Mayen (I.C.J., Reports 1993, p. 50); Territorial Dispute (Libyan Arab Jamahiriya/Chad) (I.C.J., Reports 1994, p. 25 and Reports 1995, p. 17); Oil Platforms (I.C.J., Reports 1996, p. 813); Advisory Opinion concerning Legality of the Use by a State of Nuclear Weapons in Armed Conflict (I.C.J., Reports 1996, pages 75–76 paragraphs 19–21); Avena and other Mexican Nationals (I.C.J., Reports 2004, p. 26, para. 40; p. 38, para 84); Legality of Use of Force (Serbia and Montenegro v. Belgium) (I.C.J., Reports 2004, para.102); LaGrand case (Germany v. United States of America) (I.C.J., Reports 2001, para.102); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), (I.C.J., Reports 2002).
In the following cases: Advisory Opinion concerning Reservations to the Convention on Genocide (I.C.J., Reports 1951, p. 23), Ambatielos (I.C.J., Reports 1952, p. 45), Rights of Nationals of the United States of America in Morocco (I.C.J., Reports 1952, p. 198), Advisory Opinion about the Admissibility of hearings of Petitioners by the Committee on South West Africa (I.C.J., Reports 1956, p. 28), Sovereignty over Certain Frontier Land (I.C.J., Reports 1959, p. 221 et seq. and p. 225), Right of Passage over Indian Territory (I.C.J., Reports 1960, p. 38), advisory 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. 31), Elettronica Sicula S.p.A. (ELSI), (I.C.J., Reports 1989, p. 42, paragraph 50); Maritime Delimitation in the Area between Greenland and Jan Mayen (I.C.J., Reports 1993, p. 50); Territorial Dispute (Libyan Arab Jamahiriya/Chad (I.C.J., Reports 1994, p. 22 and Reports 1995, p. 17).
In the following cases: Corfu Channel (I.C.J., Reports 1949, p. 24), Advisory Opinion concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Rumania (I.C.J., Reports 1950, p. 229); South West Africa (Second Phase) (I.C.J., Reports 1966, p. 48); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Afrcia) notwithstanding Security Council Resolution 276 (1970) (I.C.J., Reports 1971, p. 35); Aegean Sea Continental Shelf(I.C.J., Reports 1978, p. 22); Territorial Dispute (Libyan Arab Jamahiriya/Chad (I.C.J., Reports 1994, p. 25).
In the following cases: Advisory Opinion concerning the Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter) (I.C.J., Reports 1948, p. 63); advisory opinion on the Competence of the General Assembly regarding Admission to the United Nations (I.C.J., Reports 1950, p. 8), South West Africa (I.C.J., Reports 1962, p. 344); Aegean Sea Continental Shelf (I.C.J., Reports 1978, p. 32, paragraph 77); Border and Cross-Border Armed Action (Nicaragua v. Honduras), Jurisdiction and Admissibility) (I.C.J., Reports 1988, p. 85); Territorial Dispute (Libyan Arab Jamahiriya/Chad (I.C.J., Reports 1994, p. 27 and Reports 1995, pages 17 and 21); Kasikili/Sedudu Island (Botswana/Namibia) (I.C.J., Reports 1999); Avena and other Mexican Nationals (I.C.J., Reports 2004, p. 26, para. 40; pp. 38–39, para. 87 and 88); Legality of Use of Force (Serbia and Montenegro v. Belgium) (I.C.J., Reports 2004, para.103–113); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), (I.C.J., Reports 2002).
In the following cases: Advisory Opinion concerning the Constitution of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization (I.C.J., Reports 1960, p. 167); Land, Island and Maritime Frontier Dispute (I.C.J., Reports 1992, p. 586) Maritime Delimitation in the Area between Greenland and Jan Mayen (I.C.J., Reports 1993, p. 51); Oil Platforms (I.C.J., Reports 1996, p. 815); Advisory Opinion concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict,(I.C.J., Reports 1996, p. 75, paragraph 19); Kasikili/Sedudu Island (Botswana/Namibia) (I.C.J., Reports 1999).
In the case concerning Haya de la Torre (I.C.J., Reports 1951, p. 81).
In the following cases: South West Africa (Second Phase) (I.C.J., Reports 1966, p. 48, paragraph 90), and the Territorial Dispute (I.C.J., Reports 1986, p. 567 et seq., paragraph 28).
In the following cases: Advisory Opinions concerning the Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter) (I.C.J., Reports 1948, p. 61), and the Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (I.C.J., Reports 1989, p. 194). Also in the cases concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (I.C.J., Reports 1993, p. 48); and Maritime Delimitation and Territorial Questions between Qatar and Bahrain (I.C.J., Reports 1994, p. 119). In this last case the treaty is drafted in Arabic but the dispute arose from the English translation given to the I.C.J. by the Parties. More recently, in the following cases: LaGrand (Germany v. United States of America) (I.C.J., Reports 2001, para. 99); Avena and other Mexican Nationals (I.C.J., Reports 2004, p. 26, para. 40); Kasikili/Sedudu Island (Botswana/Namibia) (I.C.J., Reports 1999); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (I.C.J., Reports 2002).
In the following cases: Rights of Nationals of the United States of America in Morocco (I.C.J., Reports 1952, p. 189), Western Sahara (I.C.J., Reports 1975, p. 38 et seq., paragraphs 79 and 80), and Aegean Sea Continental Shelf (I.C.J., Reports 1978, p. 31 et seq., paragraphs 74 to 77).
Case concerning the Territorial Dispute (Lybian Arab Jamahiriya/Chad (I.C.J., Reports 1994, p. 22). And “if the intention had been otherwise, Article 2 would have been so worded as to make it clear that it is providing for only a part of the total boundary contemplated by the Preamble and Article 1” (case concerning Maritime Delimitation in the area between Greenland and Jan Mayen, I.C.J., Reports 1993, p. 50).
The complete quotation is as follows: “the Court must apply its normal canons of interpretation, the first of which, according to the established jurisprudence of the Court, is that words are to be interpreted according to their natural and ordinary meaning in the context in which they occur” (I.C.J., Case concerning the Temple of Preah Vihear, Reports 1961, p. 32). More recently, in 1992, the Court repeats its expression “normal canons of interpretation” in order to refer, later, to the “basic rule of Article 31 of the Vienna Convention on the Law of Treaties,...” (Land, Island and Maritime Frontier Dispute, I.C.J., Reports 1992, p. 582 et seq.).
I.C.J., advisory opinion on the Competence of the General Assembly for the Admission of a State to the United Nations (Reports 1950, p. 8). This general rule of interpretation is also used in the case concerning the Arbitration Award of 31 July 1989 (I.C.J., Reports 1991, p. 69, paragraph 48). Cf. Fitzmaurice, G., “The Law and Procedure...”, op. cit., pages 203 et seq.
I.C.J., advisory opinion on the Competence of the General Assembly for the Admission of a State to the United Nations, (Reports 1950, p. 8. In supporting this criterion, what the Court does is to follow the jurisprudence of the P.C.I.J. in the case concerning the Polish Postal Service in Danzig when it stated that: “it is a cardinal principle of interpretation that words must be interpreted in the sense which they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd” (P.C.I.J., Series B, No. II, p. 39).
I.C.J., Reports 1962, p. 336. After the 1969 Vienna Convention, the I.C.J. repeats this quotation and confirms the criterion contained in it. So, in the case concerning the Arbitration Award of 31 July 1989 (I.C.J., Reports 1991, p. 69 et seq., paragraph 48).
In fact, the Court: “cannot base itself on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text,...” (case concerning the Anglo-Iranian Oil Company, Reports 1952, p. 104). See also the preceding footnote.
Thus, in the Aegean Sea Continental Shelf Case, the I.C.J. points out that “Consequently, only if the grammatical arguments were compelling and decisive would the Court be convinced that such is the effect which ought to be given to the words.... But those arguments do not appear to the Court to be so compelling as has been suggested” (Reports 1978, p. 22, paragraph 52).
So, in the advisory opinion concerning the Competence of the General Assembly for the Admission of a State to the United Nations: “When the Court can give effect to a provision of a treaty by giving to the words used in it their natural and ordinary meaning, it may not interpret the words by seeking to give them some other meaning. In the present case the Court finds no difficulty in ascertaining the natural and ordinary meaning of the words in question and no difficulty in giving effect to them” (I.C.J., Reports 1950, p. 8). Its quotation in the Ambatielos case is along the same lines when it states: “The Court cannot accept an interpretation which would have a result obviously contrary to the language of the Declaration and to the continuous will of both Parties...” (I.C.J., Reports 1952, p. 45). Also, “it introduces a distinction in the plain language of the Declaration for which the Court sees no justification” (ibid., p. 41).
Thus, in the advisory opinion concerning the Conditions of Admission of a State to Membership of the United Nations (Article 4 off the Charter), where the Court stated: “The Court considers that the text is sufficiently clear; consequently, it does not feel that it should deviate from the consistent practice of the Permanent Court of International Justice, according to which there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself” (Reports 1948, p. 63). And in the advisory opinion concerning the Competence of the General Assembly for the Admission of a State to the United Nations, after stating what was quoted in the preceding footnote added: “Some of the written statements submitted to the Court have invited it to investigate the travaux préparatoires of the Charter. Having regard, however, to the considerations stated above, the Court is of the opinion that it is not permissible, in this case, to resort to travaux préparatoires” (I.C.J., Reports 1950, p. 8), because the natural and ordinary meaning in this case allows it to give sense to the words.
I.C.J., case concerning the Arbitration Award of 31 July 1989, Reports 1991, p. 70, paragraph 48. Also in the case concerning Oil Platforms: “The Court recalls that, according to customary international law as expressed in Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969, a treaty must be interpreted in good faith and in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. Under Article 32, recourse may be had to supplementary means of interpretation such as the preparatory work and the circumstances in which the treaty was concluded” (I.C.J., Reports 1996, p. 812). Cf. also, Kasikili/Sedudu Island (Botswana/Namibia), Judgement, I.C.J., Reports 1999 (II), p. 1059, para. 18; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), I.C.J., Reports 2002, para. 37; Oil platforms (Islamic Republic of Iran v. United States of America), I.C.J., Reports 2003, para. 40; Legality of Use of Force (Serbia and Montenegro v.Belgium), I.C.J., Reports 2004, para. 100.
I.C.J., case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad, Reports 1994, Judgement, pages 21–22, paragraph 41. Cf. also its Advisory Opinion concerning Legality of the Use by a State of Nuclear Weapons in Armed Conflict, (I.C.J., Reports 1996, p. 75, paragraph 19) and its decisions in the following cases: Oil platforms (Islamic Republic of Iran v. United States of America), (I.C.J., Reports 2003, para. 40); Legality of Use of Force (Serbia and Montenegro v. Belgium), I.C.J., Reports 2004, para. 100.
Case concerning Legality of Use of Force (Serbia and Montenegro v.Belgium), I.C.J., Reports 2004, para. 101. As for the words “treaties in force” the Court interpret them as “those which were in force on the date of the institution of proceedings in a case in which such treaties are invoked. In favour of this latter interpretation, it may be observed that the similar expression ‘treaties and conventions in force’ is found in Article 36, paragraph 1, of the Statute, and the Court has interpreted it in this sense (for example, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, (Lybian Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgement, I.C.J., Reports 1998, p. 16, para. 19). The expression ‘treaty or convention into force’ in Article 37 of the Statute has also been read as meaning in force at the date proceedings were instituted (Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgement, I.C.J., Reports 1964, p. 27)” (ibid.).
So, in the advisory opinion concerning the Conditions of Admission of a State to Membership of the United Nations (Article 4 of Charter): “To warrant an interpretation other than that which ensues from the natural meaning of the words, a decisive reason would be required, and this has not been established” (Reports 1948, p. 63). Cf. also Kasikili/Sedudu Island (Botswana/Namibia), Judgement, I.C.J., Reports 1999 (II), p. 1059, para. 18; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), I.C.J., Reports 2002, para. 37; Oil platforms (Islamic Republic of Iran v. United States of America), I.C.J., Reports 2003, para. 40; Legality of Use of Force (Serbia and Montenegro v.Belgium), I.C.J., Reports 2004, para. 100.
Case concerning Kasikili/Sedudu Island (Botswana/Namibia), Judgement, I.C.J., Reports 1999 (II), p. 1059, para. 20.
So, recently in the cases concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (I.C.J., Reports 1993, p. 50) and the Territorial Dispute (Libyan Arab Jamahiriya/Chad (I.C.J., Reports 1994, p. 25 and Reports 1995, pages 17–19).
I.C.J., Reports 1952, p. 44.
Cf. the case concerning the Polish Postal Service in Danzig (P.C.I.J., Series B, No. 11, p. 39). More recently: “Any other interpretation would encounter serious difficulties: it would deprive the phrase of its effect and could, moreover, well lead to an unreasonable result” (case concerning Maritime Delimitation and Territorial Questions involving Qatar and Bahrain, Judgement, Reports 1995, p. 19).
Thus, in the case concerning the Aerial Incident of July 27th, 1955 (Israel v. Bulgaria) in which the Court said: “Finally, if any doubt remained, in order to interpret Article 36, paragraph 5, the Court should consider it in its context bearing in mind the general scheme of the Charter and the Statute which is the foundation of the jurisdiction of the Court regarding the consent of States. It should, as is stated in the case of the monetary gold removed from Rome in 1943, be careful not to run counter to a well-established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent” (I.C.J., Reports 1954, p. 32)“ (I.C.J., Reports 1959, p. 142). The I.C.J. also uses context after analysing the text of the provision in its task of interpretation. For example, in its advisory opinion concerning Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), where the analysis of Article 17 is carried out taking into account “its place in the general structure and scheme of the Charter” which constitute its context (Reports 1962, p. 162). Also recently in the cases concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (I.C.J., Reports 1993, p. 50) and the Territorial Dispute (Libyan Arab Jamahiriya/Chad) (I.C.J., Reports 1994, p. 26).
For example, in the advisory opinion concerning the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime consultative Organisation, in which the I.C.J. states: “The meaning of the word ‘elected’ in the article cannot be determined in isolation by recourse to its usual or common meaning and attaching that meaning to the word where it is used in the Article. The word obtains its meaning from the context in which it is used. If the context requires a meaning which connotes a wide choice, it must be construed accordingly, just as it must be given a restrictive meaning if the context in which it is used so requires” (I.C.J., Reports 1960, p. 158). And in the advisory opinion on Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) after analysing the text of the article interpreted, the Court passes to “its place in the general structure and scheme of the Charter” which constitutes its context (I.C.J., Reports 1962, p. 162).
So, for example, in the Western Sahara case, the resolution of the General Assembly in which the opinion of the I.C.J. is requested shows that the two questions contained in the request: “have been put to the Court in the context of proceedings in the General Assembly directed to the decolonisation of Western Sahara in conformity with resolution 1514 (XV) of 14 December 1960”, in which Morocco and Mauritania claimed this territory (I.C.J., Reports 1975, p. 40, paragraph 85).
So, in the advisory 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), in which, after recalling “the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion”, it adds: “Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation” (I.C.J., Reports 1971, p. 31), also taking into account the important developments of the legal order in this sector. Also, recently, in the case concerning Maritime Delimitation and Territorial Questions involving Qatar and Bahrain (I.C.J., Reports 1994, p. 119). Here, context is given by the good offices of King Fahd Ben Abdul Aziz, of Saudi Arabia.
So, for example, in the case concerning the Arbitral Award of 31 July 1989 (I.C.J., Reports 1991, p. 69, paragraph 48), where the I.C.J. textually repeats its case law given in the advisory opinion on the Competence of the General Assembly for the admission of a State to the United Nations (I.C.J., Reports 1950, p. 8). Also in the Aegean Sea Continental Shelf case, where the Court says: “Consequently, it is in that context —...-that the meaning of the Brussels Joint communiqué of 31 May 1975 has to be appraised. When read in that context, the terms of the Communiqué do not appear to the Court to evidence any change in the position of the Turkish Government with regard to the conditions under which it was ready to agree to the submittal of the dispute to the Court” (I.C.J., Reports 1978, p. 43). Cf. also LaGrand case (Germany v. United States of America), C.I.J., Reports 2001, para. 77 and 102: “The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved” (para. 102).
As confirmation, in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) case, in which the Court places the phrase “in the wider context, first of the Special Agreement as a whole, and then of the 1980 General Peace Treaty, to which the Special Agreement refers” (I.C.J., Reports 1992, p. 583). In order to reinforce its conclusions, in the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad) (I.C.J., Reports 1994, p. 26).
I.C.J., Reports 1951. In this advisory opinion and as regards the origins, the Court states: “The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as ‘a crime under international law’ involving a denial of the right to existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96 (I) of the General Assembly, December 11th 1946)” (ibid., p. 23).
Ibid.
Ibid., p. 24. The italics are ours.
So, in the case concerning the Rights of Nationals of the United States of America in Morocco: “The purposes and objects of this Convention were stated in its Preamble in the following words: ‘the necessity to establish, on fixed and uniform bases, the exercise of the right of protection in Morocco and to settle certain questions connected therewith...’. In these circumstances, the Court can not adopt a construction by implication of the provisions of the Madrid Convention which would go beyond the scope of its declared purposes and objects. Furthermore, this contention would involve radical changes and additions to the provisions of the Convention. The Court, in its Opinion-Interpretation of Peace Treaties (Second Phase) (I.C.J., Reports 1950, p. 229)-stated: ‘It is the duty of the Court to interpret the Treaties, not to revise them’” (I.C.J., Reports 1952, p. 196).
Ibid., p. 197. See also the advisory opinion of the I.C.J. concerning Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), where the Court analyses the purposes of the United Nations in order to determine whether an expense has been incurred in order to achieve one of these.(I.C.J., Reports 1962, pages 162 et seq.).
I.C.J., Reports 1962, p. 343.
So, in the advisory opinion concerning the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organisation: “The Court cannot subscribe to an interpretation of ‘largest ship-owning nations’ in Article 28 (a) which is out of harmony with the purposes of the Convention...” (I.C.J., Reports 1960, p. 171).
In this regard, in the case concerning South West Africa, Second Phase the I.C.J. states: “91. It may be urged that the Court is entitled to engage in a process of ‘filling in the Gaps’, in the application of a teleological principle of interpretation, according to which instruments must be given their maximum effect in order to ensure the achievement of their underlying purposes. The Court need not here enquire into the scope of a principle the exact bearing of which is highly controversial, for it is clear that it can have no application in the circumstances in which the Court would have to go beyond what can reasonably be regarded as being a process of interpretation, and would have to engage in a process of rectification or revision” (I.C.J., Reports 1966, p. 48).
I.C.J., Reports 1975, p. 32.
For example, in the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad): “The object and purpose of the Treaty thus recalled confirm the interpretation of the treaty given above,...” (I.C.J., Reports 1994, p. 26). Also in the case concerning the Maritime Delimitation in the Area between Greenland and Jan Mayen (see I.C.J., Reports 1993, p. 50 seq.). In the case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysya) resort to the object and purpose of the 1891 Convention is complemented with the preamble to that Convention: “This interpretation is, in the Court’s view, supported by the very scheme of the 1891 Convention” (Reports 2002, para. 51). Cf. also Legality of Use of Force (Serbia and Montenegro v. Belgium), I.C.J., Reports 2004, para. 100.
Case concerning Kasikili/Sedudu Island (Botswana/Namibia), Judgement, I.C.J., Reports 1999 (II, para. 43.
“The Court considers that such a general formulation cannot be interpreted in isolation from the object and purpose of the Treaty in which it is inserted... It follows that the object and purpose of the Treaty of 1955 was not to regulate peaceful and friendly relations between the two States in a general sense” (case concerning Oil Platforms, Reports 1996, pages 813–814). Cf. also LaGrand case (Germany v. United States of America): “The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute” (para. 102).
In the advisory opinion concerning the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organisation the I.C.J. says: “An examination of certain Articles of the convention and the actual practice which was followed in giving effect to them throws some light on the court’s consideration of the question” (I.C.J., Reports 1960, p. 167).
Thus, in the Corfu Channel Case: “The subsequent attitude of the Parties shows that it was not their intention, by entering into the Special Agreement, to preclude the Court from fixing the amount of the compensation” (I.C.J., Reports 1949, p. 25).
Case concerning Kasikili/Sedudu Island (Botswana/Namibia), Judgement, I.C.J., Reports 1999 (II), para. 80.
See the cases concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (I.C.J., Reports 1993, p. 51 s.), the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (I.C.J., Reports 1992, p. 586) and the Oil Platforms (I.C.J., Reports 1996, p. 815). In the latter: “The practice followed by the Parties with regard to the application of the Treaty does not lead to a different conclusion”.
Case concerning Kasikili/Sedudu Island (Botswana/Namibia), Judgement, I.C.J., Reports 1999 (II), para. 79.
Adding that, whenever in the past a special agreement has entrusted the Court with a task related to delimitation, it has spelled out “very clearly” what was asked of the Court: the formulation of principles or rules enabling the parties to agree on delimitation, the precise application of these principles and rules or the task involved in drawing the delimitation line (cf. I.C.J., Reports 1992, p. 586). The customary nature of Article 31, paragraph 3 of the Vienna Convention of 23 May 1969 on the Law of Treaties, is also declared by the Court in the case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysya) (cf. Reports 2002, para. 37).
Case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (cf. Reports 2002, para. 88).
So, in the advisory opinion on the Competence of the Assembly regarding Admission to the United Nations: “In the present case the Court finds no difficulty in ascertaining the natural and ordinary meaning of the words in question and no difficulty in giving effect to them. Some of the written statements submitted to the Court have invited it to investigate the travaux préparatoires of the Charter. Having regard, however, to the considerations stated above, the Court is of the opinion that it is no permissible, in this case, to resort to travaux préparatoires” (I.C.J., Reports 1950, p. 8). In the South West Africa (Preliminary Objections) case, however, the I.C.J. uses, among other criteria, the preparatory works when it says that the article in question: “was embodied in the draft agreement between the Principle Allied and Associated Powers and was proposed to the Council of the League by the representative of the United Kingdom as the original mandatory on behalf of South Africa, the present Mandatory for South West Africa” (I.C.J., Reports 1962, p. 344).
So, in the advisory opinion on the Conditions of Admission of a State to Membership of the United Nations (Article 4 of Charter) the I.C.J. says: “The Court considers that the text is sufficiently clear; consequently, it does not feel that it should deviate from the consistent practice of the Permanent Court of International Justice, according to which there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself” (I.C.J., Reports 1947–1948, p. 63). In a similar way see the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad) (I.C.J., Reports 1994, p. 26).
In the advisory opinion concerning Reservations to the Convention on Genocide: “The preparatory work of the Convention contains nothing to justify the statement that the contracting States implicitly had any definite practice in mind. Nor is there any such indication in the subsequent attitude of the contracting States: neither the reservations made by certain States nor the position adopted by other States towards those reservations permit the conclusion that assent to one or other of these practices had been given” (I.C.J., Reports 1951, p. 25 et seq.). As concerns this question see Quel Lopez, F.J., Las reservas a los tratados internacionales (un examen de la práctica española), Servicio Editorial de la Universidad del País Vasco, Bilbao, 1991, pages 89–222.
Thus, in the case concerning Border and Cross-Border Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility where the I.C.J. says: “Further confirmation of the Court’s reading of Article XXXI is to be found in the travaux préparatoires. In this case these must of course be resorted to only with caution, as not all the stages of the drafting of the texts at the Bogotá Conference were the subject of detailed records” (I.C.J., Reports 1988, p. 85). Cf. also the cases cocnerning Legality of Use of Force (Serbia and Montenegro v. Belgium), I.C.J., Reports 2004, para. 103, and Kasikili/Sedudu Island (Botswana/Namibia), Judgement, I.C.J., Reports 1999 (II), para. 46.
So, in the case concerning Fisheries Jurisdiction (United Kingdom v. Iceland), in which, after recalling its jurisprudence concerning the subsidiary character of preparatory works when the text of the treaty is sufficiently clear, it undertakes the review of the negotiations that led to the 1961 Exchange of Notes: “having regard to the peculiar circumstances of the present proceedings, — the failure to appear of one of the Parties-and in order fully to ascertain the scope and purpose of the 1961 Exchange of Notes,...” (I.C.J., Reports 1973, pages 10 and 56).
In the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad): “The Court considers that it is not nercessary to refer to travaux préparatoires to elucidate the content of the 1955 Treaty; but, as in previous cases, it finds it possible by reference to the travaux to confirm its reading of the text, namely, that the treaty constitutes an agreement between the parties which, inter alia, defines the frontiers” (I.C.J., Reports 1994, p. 27). More recently, it states: “In short, it is clear that none of the sources of interpretation referred to in the relevant Articles of the Vienna Convention on the Law of Treaties, including the preparatory work, contradict the conclusions drawn from the terms of Article 41 read in their context and in the light of the object and purpose of the Statute. Thus, the Court has reached the conclusion that orders on provisional measures under Article 41 have binding effect” (LaGrand case Germany v. United States of America, Reports 2001, para. 101). Cf. also the case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (cf. Reports 2002, para. 53).
“The travaux préparatoires of the Doha Minutes must be used with caution in the present case, on account of their fragmentary nature. In the absence of any document relating the progress of the negotiations, they appear to be confined to two draft texts submitted by Saudi Arabia and Oman successively and the amendments made to the latter” (case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Judgement, I.C.J., Reports 1995, p. 21).
I.C.J., Reports 1948, p. 62.
This Article states: “The United States contended that ‘immovable property or interests therein’ is a phrase sufficiently broad to include direct ownership of property rights held trough a subsidiary that is not a United States corporation. The argument turned to a considerable extent on the difference in meaning between the English ‘interests’ and the Italian ‘diritti reali’. ‘Interests’ in English no doubt has several possible meanings. But since it is in English usage a term commonly used to denote different kinds of rights in land (for example rights such as charges, or easements, and many kinds of ‘future interests’), it is possible to interpret the English and Italian versions of Article VII as meaning much the same thing; especially as the clause in question is in any event limited to immovable property. The Chamber however has some sympathy with the contention of the United States, as being more in accord with the general purpose of the FCN Treaty” (Reports 1989, p. 79). Cf. Giuliano, M., et alt., op. cit., p. 355. Cf. also the advisory opinion of the I.C.J. on the Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Reports 1948), p. 62.
See the cases concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (I.C.J., Reports 1993, p. 48); and Maritime Delimitation and Territorial Questions between Qatar and Bahrain (I.C.J., Reports 1994, p. 119).
It is the “Special Agreement between El Salvador and Honduras to submit to the decision of the International Court of Justice the Land, Island and Maritime Boundary Dispute existing between the two States, signed in the City of Esquipulas, Republic of Guatemala, on 24 May 1986”. The Parties provided the Chamber with a joint translation into English of this special Agreement. A French translation of the agreed English translation of the Special Agreement was prepared by the Registry of the I.C.J. (cf. I.C.J., Reports 1992, p. 356).
I.C.J., LaGrand (Germany v. United States of America), Reports 2001, para. 101.
The Court concludes: “It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article” (ibid., para. 102).
I.C.J., Reports 1951, p. 23. The italics are ours.
So, in the Ambatielos case: “The Court cannot accept an interpretation which would have a result obviously contrary to the language of the Declaration and to the continuous will of both Parties to submit all differences to arbitration of one kind or another” (I.C.J., Reports 1952, p. 45). Also in the advisory opinion concerning the Admissibility of Hearings of Petitioners by the Committee on South West Africa, where the I.C.J. states: “Accordingly, in interpreting any particular sentences in the Opinion of the Court of 11 July 1950, it is not permissible, in the absence of express words to the contrary, to attribute to them a meaning which would not be in conformity with this paramount purpose or with the operative part of that Opinion” (I.C.J., Reports 1956, p. 28). The italics are ours. Cf. also the decisions of the I.C.J. in the cases concerning Sovereignty over Certain Frontier Land (I.C.J., Reports 1959, p. 225) and Maritime Delimitation in the Area between Greenland and Jan Mayen (I.C.J., Reports 1993, p. 50). In the last, the I.C.J. states that if the intention of the Parties were to be different, the provision of the treaty would be drafted otherwise.
For example, in the case of the Rights of Nationals of the United States of America in Morocco: “In this case, there is a clear indication of the intention of the parties to the effect that certain matters are to be dealt with by the consular tribunals and to this extent it is possible to interpret the provisions of the Act as establishing or confirming the exercise of consular jurisdiction for these limited purposes” (I.C.J., Reports 1952, p. 198). The italics are ours). Also, in the case concerning the Right of Passage over Indian territory, where the Court states: “It therefore appears that the Treaty of 1779 and the sanads of 1783 and 1785 were intended by the Marathas to effect in favour of the Portuguese only a grant... and not to transfer sovereignty over the villages to them” (I.C.J., Reports 1960, p. 38).
I.C.J., advisory 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), Reports 1971, p. 31.
This question is present in the Elettronica Sicula S.p.A. (ELSI) case, where the I.C.J. states: “The Chamber has no doubt that the parties to a treaty can therein either agree that the local remedies rule shall not apply to claims based on alleged breaches of that treaty; or confirm that it shall apply. Yet the Chamber finds itself unable to accept that an important principle of customary international law should be held to have been tacitly dispensed with, in the absence of any words making clear an intention to do so” (I.C.J., Reports 1989, p. 42, paragraph 50).
This is the situation in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain where the I.C.J. contests the argument of Bahrain considering its intention at the time of the signature of the joint communiqué as the signature of a statement recording a political understanding and not an international agreement, saying that “nor could any such intention, even if shown to exist, prevail over the actual terms of the instrument in question” (I.C.J., Reports 1994, p. 122).
Case concerning Kasikili/Sedudu Island (Botswana/Namibia), Judgement, (I.C.J., Reports 1999 (II), p. 1061, para. 27. Cf. also para. 43).
In the case concerning the Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) the Court sates that “it must have regard to the common intention as it is expressed in the words of the Special Agreement” (I.C.J., Reports 1992, p. 584). Also: “There is no doubt that the Court’s jurisdiction can only be established on the basis of the will of the Parties, as evidenced by the relevant texts” (case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Judgement, I.C.J., Reports 1995, p. 23).
Case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (cf. I.C.J., Reports 2002, para. 71).
Cf. in this regard, the advisory opinion of the I.C.J. in the case concerning Interpretation of Peace Treaties with Bulgaria, Hungary and Rumania, Second Phase (Reports 1950, p. 229).
So, in the Corfu Channel case where the I.C.J. quoting the P.C.I.J. says: “In its Order of August 19th, 1929, in the Free Zones Case, the Court said (Series A, No. 22, p. 13): ‘in case of doubt, the clauses of a special agreement by which a dispute is referred to the Court must, if it does not involve doing violence to their terms, be construed in a manner enabling the clauses themselves to have appropriate effects’” (I.C.J., Reports 1949, p. 24). And adds: “It would indeed be incompatible with the generally accepted rules of interpretation to admit that a provision of this sort occurring in a special agreement should be devoid of purport or effect” (ibid.). Along the same lines, in the advisory opinion in the case concerning Interpretation of Peace Treaties with Bulgaria, Hungary and Rumania, Second Phase: “The principle of interpretation expressed in the maxim: Ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties a meaning which, as stated above, would be contrary to their letter and spirit” (I.C.J., Reports 1950, p. 229). The italics correspond to the original. The same quotation is reproduced by the I.C.J. in its judgement concerning the South West Africa, Second Phase case (I.C.J., Reportsl 1966, p. 48).
I.C.J., South West Africa, Second Phase case (Reports 1966, p. 48).
“Any other construction would be contrary to one of the fundamental principles of interpretation of treaties, consistently upheld by international jurisprudence, namely that of effectiveness” (the case concerning the Territorial Dispute, I.C.J., Reports 1994, p. 25).
I.C.J., Reports 1951, p. 81. The italics are ours.
I.C.J., South West Africa, Second Phase case (Reports 1966, p. 48). The italics correspond to the original.
Expressed in the application of the principles and rules considered applicable by the Court in the case in question (I.C.J., Frontier Dispute, Reports 1986, p. 567 et seq., paragraph 28). The underlining corresponds to the original.
Cf. Juste Ruiz, J., “La equidad en el Derecho Internacional Público: aspectos actuales”, I.H.L.A.D.I., Santo Domingo, 1989, p. 9.
Cf. La equidad en el Derecho Internacional Público: aspectos actuales”, I.H.L.A.D.I., Santo Domingo, 1989, p. 9 ibid. In this case this would be a kind of equity infra legem allowing the judge to make the profile more specific and adjust them to the requirements of the case in question and remain within the framework of applicable Law. Nevertheless, in practice, it is sometimes very difficult to distinguish this complementary function of equity from other kinds of supplementary applications (praeter legem) or abolition (contra legem), considered as unacceptable (cf. ibid.).
I.C.J., Fisheries Jurisdiction, Reports 1974, p. 33, paragraph 78. About this question see Juste Ruiz, J., “Delimitaciones marinas en Africa Occidental: el laudo Arbitral sobre la delimitación de la frontera marítima entre Guinea y Guinea-Bissau”, R.E.D.I., 1990/1, pages 7-41.
I.C.J., case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Reports 1982, p. 60, paragraph 71. See also Juste Ruiz, J., “Delimitaciones marinas en Africa Occidental...”, just quoted.
This rule is applied by the I.C.J., for example, with regard to the notion of “dispute” in the treaties concluded in the XVII century between Morocco and France and in the XVIII and XIX centuries between Morocco and Great Britain (cf. the case concerning the Rights of nationals of the United States of America in Morocco I.C.J., Reports 1952, p. 189), and with regard to the concept of “terra nullius”, in the Western Sahara case (cf. I.C.J., Reports 1975, p. 38).
I.C.J., Reports 1975, p. 38.
This rule is also applied by the I.C.J., for example, with regard to the notion of “mandate”, in the South West Africa (Preliminary Objections) case, (cf. I.C.J., Reports 1962, p. 330 et seq.); with regard to the concepts of “the strenuous conditions of the modern world” and “the well-being and development” embodied in Article 22 of the Covenant of the League of Nations, in the case concerning the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), (Reports 1971, p. 31); and in the case of the Aegean Sea Continental Shelf with regard to the notion of “territorial status” (cf. I.C.J., Reports 1978, p. 33 et seq.).
I.C.J., Reports 1978, p. 33 et seq.
Cf. I.L.C., Yearbook..., op. cit., p. 241.
Ibid.
So, in the case concerning the Land, Island and Maritime Frontier Dispute (cf. I.C.J., Reports 1992, p. 582 s.). Cf. also the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad) (I.C.J., Reports 1994, p. 22); saying that if the intention had been otherwise Article 2 would have also been worded otherwise (cf. the case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen, I.C.J., Reports 1993, p. 50).
In the first, the I.C.J. says that the rule of interpretation according to the natural and ordinary meaning of the words employed is not an absolute one. So, “where such a method of interpretation results in a meaning incompatible with the spirit, purpose and context of the clause or instrument in which the words are contained, no reliance can be validly placed on it” (I.C.J., Reports 1991, p. 69 s.). Cf. the second case in I.C.J., Reports 1978, p. 22.
I.C.J., Reports 1992, p. 586.
Cf. the Western Sahara case (Reports 1975, p. 40).
In the cases concerning the Consequences for States... (cf. I.C.J., Reports 1971, p. 31) and the Maritime Delimitation and territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility (cf. I.C.J., Reports 1994, p. 119).
In the cases concerning the Arbitration Award of 31 July 1989 (cf. I.C.J., Reports 1991, p. 69) and the Aegean Sea continental Shelf (cf. I.C.J., Reports 1978, p. 43).
In the case concerning the Land, Island, and Maritime Frontier Dispute (cf. I.C.J., Reports 1992, p. 583).
In the Territorial Dispute case (cf. I.C.J., Reports 1994, p. 26).
In the case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (cf. I.C.J., Reports 1993, p. 51 et seq.).
In this case, a delimitation Cf. the case concerning the Land, Island, Maritime and Frontier Dispute (I.C.J., Reports 1992, p. 586).
I.L.C., Yearbook..., op. cit., p. 242.
In the case concerning the Land, Island and Maritime Frontier Dispute (cf. I.C.J., Reports 1992, p. 584). Consequently, when intention is invoked in order to justify an interpretation different from that resulting from the text, the latter has primacy (cf. the case concerning maritime delimitation and territorial questions..., I. C.J., Reports 1994, p. 122).
Cf. the case concerning Elettronica Sicula S.p.A. (ELSI), (I.C.J., Reports 1989, p. 50).
Cf. I.C.J., the Western Sahara case, Reports 1975, p. 32.
In the cases concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad (cf. I.C.J., Reports 1994, p. 26) and Maritime Delimitation in the Area between Greenland and Jan Mayen (cf. I.C.J., Reports 1993, p. 50 et seq.).
For example, in the case concerning Fisheries Jurisdiction (cf. (I.C.J., Reports 1973, pages 10 and 56).
Cf. the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), (I.C.J., Reports 1994, p. 27).
Cf. the case concerning Border and Cross-Border Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility (I.C.J., Reports 1988, p. 85).
Cf. the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad) (I.C.J., Reports 1994, p. 26)
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(2007). The International Court of Justice (I.C.J.). In: Sovereignty and Interpretation of International Norms. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-68207-3_6
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