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References
So, it states: “It is true that most interpretations of the Charter of the United Nations will have political significance, great or small. In the nature of things it could not be otherwise. The Court, however, cannot attribute a political character to a request which invites it to undertake an essentially judicial task, namely, the interpretation of a treaty provision” (I.C.J., Advisory Opinion concerning Certain Expenses of the United Nations, Reports 1962, p. 155).
I.C.J., Reports 1948, p. 61.
I.C.J., Advisory Opinion concerning Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Reports 1948, p. 62.
Ibid., p. 62. And adds: “To warrant an interpretation other than that which ensues from the natural meaning of the words, a decisive reason would be required which has not been established” (ibid., p. 63).
I.C.J., Reports 1962, p. 161.
Cf. ibid., pages 161 set seq.
Advisory Opinion concerning the Effects of Awards of Compensation Made by the United Nations Administrative Tribunal (I.C.J., Reports 1954, p. 59). And in this regard, the attribution of the budgetary power to the General Assembly could not be considered as “implying a right to refuse the execution of an obligation derived from an award of the Administrative Tribunal” (ibid.).
Cf. ibid., p. 57.
Ibid.
Ibid., p. 58.
Cf. ibid.
Cf. ibid., p. 62.
I.C.J., Reports 1962, p. 157.
Ibid.
It adds that, as far as this case is concerned, the request for an advisory opinion does not have to do with the validity of Resolution 2145 (XXI) of the General Assembly nor the resolutions connected with the Security Council nor whether it is in agreement with the Charter. However, “in the exercise of its judicial function and since objections have been raised, the Court will examine these when it gives the grounds before pronouncing on the judicial consequences deriving from these resolutions” (ibid., p. 45).
I.C.J., Reports 1992, pages 114–118.
I.C.J., op. cit., p. 123.
Ibid. Chapter VII of the Charter was also applied by the Security Council when Kuwait was invaded by Iraq.
This problem is resolved in other areas such as European Community Law, but insufficiently within the framework of the Charter. Statements of the I.C.J. can be found in the following cases: United States Diplomatic and Consular Staff in Tehran (I.C.J., Reports 1980, pages 21 and 22, paragraph 40), and Military and Paramilitary Activities in and against Nicaragua (I.C.J., Reports 1984, pages 433–435, paragraphs 92 to 97), which we will study later on. See on this question, Sanchez Rodriguez, L.I., “La invasión de Kuwait por Iraq y la acción del Consejo de Seguridad de las Naciones Unidas”, Cursos de Derecho Internacional de Vitoria-Gasteiz. 1991, pages 15–60. Also Orakhelashvili, A., “The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions”, E.J.I.L, Vol. 16, Nr. 1, February 2005, pp. 59–88.
In other words, there occurs “an overlap of attributes which leads to a conflict of competence among institutions” (Andrés Sáenz de Santa María, P., “De maximis non curat praetor...?..., op. cit., page 333). Sea also Arangio Ruiz, G., “On the Security Council’ ‘Law-Making’”, R.D.I., 2000, vol. LXXXIII, no 3, pp. 609–725.
Thus, in the case concerning Military and Paramilitary Activities in and against Nicaragua, when the United States argued that the matter were essentially one for the Security Council since it concerned a complaint by Nicaragua involving the use of force, the I.C.J. recalled its jurisprudence in the case concerning the United States Diplomatic and Consular Staff in Tehran: “In the preamble to this second resolution the Security Council expressly took into account the Court’s Order of 15 December 1979 indicating provisional measures; and it does not seem to have occurred to any member of the Council that there was or could be anything irregular in the simultaneous exercise of their respective functions by the Court and the Security Council. Nor is there in this any cause for surprise (I.C.J., Reports 1980, p. 21, par. 40)” (I.C.J., Reports 1984, p. 433, paragraph 93).
I.C.J., case concerning Military and Paramilitary Activities in and against Nicaragua, Reports 1984, pages 433–434, paragraph 93.
Ibid., p. 435, paragraph 95. The words in italics correspond to the original. The I.C.J. reinforces its argument and recalls its statement in the case concerning the Corfu Channel, and says: “It must also be remembered that, as the Corfu Channel case (I.C.J., Reports 1949, p. 4) shows, the Court has never shied away from a case brought before it merely because it had political implications or because it involved serious elements of the use of force. The Court was concerned with a question of a ‘demonstration of force’ (loc. cit., p. 31) or ‘violation of a country’s sovereignty’ (ibid.); the Court, indeed, found that: ‘Intervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself (ibid., p. 35)’” (case concerning Military and Paramilitary Activities in and against Nicaragua, I.C.J., Reports 1984, p. 435, paragraph 96). The words in italics correspond to the original.
I.C.J., Reports 1980, p. 22.
Ibid., adding that this is what is recognized in Article 36, paragraph 3, of the Charter when it states that: “In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court”.
Bedjaoui, M., Nouvel ordre mondial et contrôle de légalité des actes du Conseil de Sécurité, Bruylant, Bruxelles, 1994, p. 88. See also Torres Bernardez, S., “Some considerations on the respective roles of the Security Council and the International Court of Justice with respect to ‘the prevention of aggravation of disputes’ in the domain of the pacific settlement of international disputes or situations”, International Legal Issues Arising under the United Nations Decade of International Law, Kluwer, Netherlands, 1995, pages 663–708.
See Torres Bernardez, S., “Perspectivas en la contribución de las Naciones Unidas al mantenimiento de la paz y la seguridad internacionales: comentarios y observaciones sobre la Declaración de los Miembros del Consejo de Seguridad de 31 de enero de 1992”, in Hacia un nuevo orden internacional y europeo. Estudios en homenaje al Profesor Manuel Díez de Velasco, Tecnos, Madrid, 1993, pages 751–752.
See the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (I.C.J., Reports 1994, p. 122).
I.C.J., Advisory Opinion concerning the International Status of South-West Africa, Reports 1950, p. 132.
Effectively: “It cannot be correctly regarded as embodying only an executive action in pursuance of the Covenant. The Mandate, in fact and in law, is an international agreement having the character of a treaty or convention. The Preamble of the Mandate itself shows this character” (I.C.J., South-West Africa Cases Preliminary Objections, Reports 1962, p. 330). Along the same lines: “It is an instrument having the character of a treaty or convention and embodying international engagements for the Mandatory as defined by the Council and accepted by the Mandatory” (ibid., p. 331).
I.C.J., Reports 1950, p. 132.
Ibid., p. 136.
Obligations that “represent the very essence of the sacred trust of civilization” (Advisory Opinion concerning the International Status of South West Africa, I.C.J., Reports 1950, p. 133)Ibid., p. 137.
Thus, the expressions contained in Article 22: “the strenuous conditions of the modern world” and “the well-being and development” of the peoples concerned, “were not static, but were by definition evolutionary, as also, therefore, was the concept of the’ sacred trust’. The parties to the Covenant must consequently be deemed to have accepted them as such” (I.C.J., Reports 1971, pages 31–32 et seq.).
I.C.J., Reports 1950, p. 132.
Ibid., p. 131.
I.C.J., Reports 1971, p. 32.
Case concerning the Western Sahara (I.C.J., Reports 1975, pages 32–33).
Ibid., p. 33. The Court adds that paragraphs 2, 5 and 6 of Resolution 1514 (XV), “confirm and emphasize that the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned” (ibid., p. 32).
Principle “defined as the need to pay regard to the freely expressed will of the peoples” (ibid., p. 33).
Ibid.
Ibid., p. 36.
I.C.J., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 88.
See I.C.J., Western Sahara, Advisory Opinion, I.C.J., Reports 1975, p. 68, para. 162.
See I.C.J., East Timor (Portugal v. Australia), Judgment, I.C.J., Reports 1995, p. 102, para. 29.
I.C.J., Reports 1995, p. 102.
For example, its judgement in the case concerning Military and Paramilitary Activities in and against Nicaragua (I.C.J., Reports 1986), in which the difficulty of the presence of the reservation of the United States was surmounted by the interpretation of the Court concerning the application of customary International Law in order to have jurisdiction over the case.
I.C.J., Reports 1995, p. 102.
The Court recognises that “it is not necessarily prevented from adjudicating when the judgement it is asked to give might affect the legal interests of a State which is not a party to the case” and quotes the case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia) (I.C.J., Reports 1995, p. 104).
I.C.J., Reports 1995, pages 105–106.
So: “Without prejudice to the question whether the resolutions under discussion could be binding in nature, the Court considers as a result that they cannot be regarded as ‘givens’ which constitute a sufficient basis for determining the dispute between the Parties” (I.C.J., Reports 1995, p. 104).
See the cases concerning Aegean Sea Continental Shelf (I.C.J., Reports 1978, p. 39) and Maritime Delimitation and Territorial Questions between Qatar and Bahrain (I.C.J., Reports 1994, pages 120–121).
See I.C.J., Reports 1994, p. 121. Moreover, the text of the Communiqué was signed by the Ministers for Foreign Affairs so Bahrain cannot maintain that it was no more than a simple record of negotiations (see ibid.).
Accordingly, the Joint Communiqué of Brussels does not furnish a valid basis for establishing the Court’s jurisdiction to entertain the Application filed by Greece (see I.C.J., Reports 1978, pages 39–44).
The same question arose in the case concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America), I.C.J., Reports 1998. The dispute brought by Paraguay to the Court concerned alleged violations of the Vienna Convention on Consular Relations of 24 April 1963 with respect to the case of Mr. Angel Francisco Breard, a Paraguayan national convicted of murder in Virginia (United States), whose execution had been scheduled for 14 April 1998 and who was eventually executed on that date. By a letter of 2 November 1998, the Government of Paraguay informed the Court that, despite the fact that it had filed a Memorial on the merits of the case on 9 October last, it did not wish to go ahead with the proceedings and requested that the case be removed from the Court’s List. On 10 November 1998 the Court made an Order recording the discontinuance of the proceedings and directing the removal of the case from the Court’s List.
I.C.J., LaGrand case (IC.J. Reports 2001, p. 492, para. 74); case concerning Avena and other Mexican Nationals (I.C.J., Reports 2004, p. 29, para. 50 and p. 41, para. 99).
I.C.J., case concerning Avena and other Mexican Nationals (I.C.J., Reports 2004, p. 41, para. 100).
I.C.J., LaGrand case (IC.J. Reports 2001, p. 492, para. 74).
Ibid.
I.C.J., case concerning Avena and other Mexican Nationals (I.C.J., Reports 2004, p. 33, para. 61).
I.C.J., LaGrand case (IC.J. Reports 2001, p. 493, para. 77).
Ibid.
Cf. I.C.J., case concerning Avena and other Mexican Nationals (I.C.J., Reports 2004, p. 26, para. 40).
Ibid.
Ibid.
Cf. ibid., p. 49, para. 124.
Cf. ibid., p. 17, para. 18.
Cf. ibid. p. 33, para. 61.
ibid., p. 34, para. 64.
ibid., p. 36, para. 76.
ibid., p. 39, para. 91.
ibid., p. 38, para. 83.
Ibid., p. 38, para. 84.
Ibid., p. 38, para. 85.
Ibid., pp. 38 and 39, para. 87 and 88.
Ibid., p. 39, para. 86.
As we have seen in precedent pages of this work, the Court itself has had occasion in the past to hold that customary international law found expression in Article 31 of the Vienna Convention. As an example in recent cases, see Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J., Reports 1994, p. 21, para. 41; Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J., Reports 1996 (II), p. 812, para. 23).
I.C.J., case concerning Kasikili/Sedudu Island, para. 18.
Ibid., para. 20.
The Court refers itself to the Arbitral Award concerning the “Controversia sobre el recorrido de la traza del límite entre el Hito 62 y el Monte Fitz Roy (Argentina/Chile) [Dispute concerning the course of the frontier between B.P. 62 and Mount Fitz Roy (Argentina/Chile)], also known as the “Laguna del desierto” case, Arbitral Award of 21 October 1994, International Law Reports (ILR), Vol. 113, p. 76, para. 157; Revue générale de droit international public (RGDIP), Vol. 2, 1996, p. 592, para. 157)” (ibid.).
Ibid., para. 21.
Ibid., para 24.
Ibid., para 25.
Ibid.
“In Botswana’s view, it is to be found “on the basis of the thalwegs in the northern and western channel of the Chobe”, whereas in Namibia’s view, it “lies in the centre (that is to say thalweg) of the southern channel of the Chobe River”.” (ibid., para. 27).
Ibid.
Ibid., para. 31.
Ibid., para. 41.
Ibid., para. 42.
Ibid., para. 42.
Ibid., para. 43. The I.C.J. refers to the Preah Vihear, (Merits) case, where it stated that “there are boundary treaties which do no more than refer to a watershed line, or to a crest line, and which make no provision for any delimitation in addition.” (I.C.J., Reports 1962, p. 34.)”. Then, it adds: “in that Judgment the Court added that this was “an obvious and convenient way of describing a frontier line objectively, though in general terms” (ibid., p. 35). In the present case, the contracting parties employed a similar approach” (ibid., para. 43).
Ibid., para. 51.
Ibid., para. 79–80.
Ibid. And adds: “Inasmuch as Botswana and Namibia agreed, in their replies to a question put by a Member of the Court, that the thalweg was formed by the line of deepest soundings, the Court concludes that the boundary follows that line in the northern channel around Kasikili/Sedudu Island”.
I.C.J., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 95.
Ibid.
Adding that “Whilst the drafters of the Hague Regulations of 1907 were as much concerned with protecting the rights of a State whose territory is occupied, as with protecting the inhabitants of that territory, the drafters of the Fourth Geneva Convention sought to guarantee the protection of civilians in time of war, regardless of the status of the occupied territories, as is shown by Article 47 of the Convention” (ibid.).
In this sense: “The Conference of Government Experts convened by the International Committee of the Red Cross (hereinafter, ‘ICRC’) in the aftermath of the Second World War for the purpose of preparing the new Geneva Conventions recommended that these conventions be applicable to any armed conflict ‘whether [it] is or is not recognized as a state of war by the parties’ and ‘in cases of occupation of territories in the absence of any state of war’ (Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, 14–26 April 1947, p. 8). The drafters of the second paragraph of Article 2 thus had no intention, when they inserted that paragraph into the Convention, of restricting the latter’s scope of application. They were merely seeking to provide for cases of occupation without combat, such as the occupation of Bohemia and Moravia by Germany in 1939” (ibid.).
Where they issued a statement “in which they ‘reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem’. Subsequently, on 5 December 2001, the High Contracting Parties, referring in particular to Article 1 of the Fourth Geneva Convention of 1949, once again reaffirmed the ‘applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem’. They further reminded the Contracting Parties participating in the Conference, the parties to the conflict, and the State of Israel as occupying Power, of their respective obligations” (ibid., para. 96).
Which, in a declaration of 5 December 2001, recalled that “the ICRC has always affirmed the de jure applicability of the Fourth Geneva Convention to the territories occupied since 1967 by the State of Israel, including East Jerusalem” (ibid.).
Cf. ibid., paras. 98–100.
Ibid., para. 101.
Ibid., para. 106.
Ibid., para. 109.
Constant practice which the Court considers consistent with its conclusion concerning the applicability of the Covenant to the Occupied Palestinian Territory. It adds: “Thus, the Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory. It has ruled on the legality of acts by Uruguay in cases of arrests carried out by Uruguayan agents in Brazil or Argentina (case No. 52/79, López Burgos v. Uruguay; case No. 56/79, Lilian Celiberti de Casariego v. Uruguay). It decided to the same effect in the case of the confiscation of a passport by a Uruguayan consulate in Germany (case No. 106/81, Montero v. Uruguay)” (ibid.).
Which confirms the Committee’s interpretation of Article 2 of the covenant: “These show that, in adopting the wording chosen, the drafters of the Covenant did not intend to allow States to escape from their obligations when they exercise jurisdiction outside their national territory. They only intended to prevent persons residing abroad from asserting, vis-à-vis their State of origin, rights that do not fall within the competence of that State, but of that of the State of residence (see the discussion of the preliminary draft in the Commission on Human Rights, E/CN.4/SR.194, para. 46; and United Nations, Official Records of the General Assembly, Tenth Session, Annexes, A/2929, Part II, Chap. V, para. 4 (1955))” (ibid.).
The position of Israel is based on the non applicability of the Covenant in the occupied territories. The Committee has stated its applicability: “‘in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by the State party’s authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law’ (CCPR/CO/78/ISR, para. 11)” (ibid., para. 110).
According to which “‘the State party’s obligations under the Covenant apply to all territories and populations under its effective control’ (E/C.12/1/Add.90, paras. 15 and 31)” (ibid., para. 112).
Ibid.
Ibid., para. 113.
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(2007). Conventional Instruments or Instruments of a Statutory Nature. In: Sovereignty and Interpretation of International Norms. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-68207-3_8
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