International Court of Justice

(1) The Gambia v. Myanmar (indication of provisional measures)


On 23 January 2020, the International Court of Justice (the Court) delivered its order on the request for the indication of provisional measures submitted by the Republic of The Gambia (‘The Gambia’) in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar).

On 11 November 2019, The Gambia filed an application instituting proceedings against the Republic of the Union of Myanmar (‘Myanmar’) concerning alleged violations of the Genocide Convention. In its application, The Gambia argued in particular that Myanmar has committed and continues to commit genocidal acts against members of the Rohingya group, which it describes as a ‘distinct ethnic, racial and religious group that resides primarily in Myanmar’s Rakhine State’. The application contained a request for the indication of provisional measures, seeking to preserve, pending the Court’s final decision in the case, the rights of the Rohingya group in Myanmar, of its members and of The Gambia under the Genocide Convention.

The Court established that it has jurisdiction and that The Gambia does have prima facie standing to bring a case before it on the basis of alleged violations of obligations under the Genocide Convention. The Court recalled that any State party to the Genocide Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end.

Addressing the question whether the rights claimed by The Gambia are plausible, the Court observed that the provisions of the Genocide Convention are intended to protect the members of a national, ethnical, racial or religious group from acts of genocide or any other punishable acts enumerated in Article III. In the Court’s view, the Rohingya in Myanmar appear to constitute a protected group within the meaning of the Genocide Convention. The Court then recalled that, at the hearings, Myanmar stated that violations of international humanitarian law may have occurred during what it characterizes as ‘clearance operations’ carried out in Rakhine State in 2017. The Court further referred to resolution 73/264 adopted on 22 December 2018 by the General Assembly of the United Nations, as well as to the reports of the Fact-Finding Mission affirming that there are reasonable grounds to conclude to the commission of genocide against the Rohingya. In the Court’s view, these facts and circumstances are sufficient to find that the rights claimed by The Gambia and for which it is seeking protection are plausible.

Turning to the issue of the link between the rights claimed and the provisional measures requested, the Court found that some of the provisional measures sought by The Gambia are aimed at preserving the rights claimed in the present case and that therefore the requisite link has been established. In view of the fundamental values sought to be protected by the Genocide Convention, the Court considered that the right of the Rohingya group in Myanmar and of its members to be protected from killings and other acts threatening their existence as a group are of such a nature that prejudice to them could cause irreparable harm.

In light of these considerations, the Court found that there is a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia and indicated unanimously the following provisional measures:

  1. 1.

    Myanmar shall in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group;

  2. 2.

    Myanmar shall, in relation to the members of the Rohingya group in its territory, ensure that its military and other armed units and persons subject to its control, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide;

  3. 3.

    Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Genocide Convention;

  4. 4.

    Myanmar shall render a report to the Court on all measures taken to give effect to this Order every 6 months, until a final decision on the case.

(2) Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar (Appeal relating to the jurisdiction of the ICAO Council)


On 14 July 2020, the International Court of Justice delivered its judgment on the Appeal Relating to the Jurisdiction of the Council of the International Civil Aviation Organization (‘ICAO Council’) under Article II, Section 2, of the 1944 International Air Services Transit Agreement.

On 30 October 2017, the Government of the State of Qatar (‘Qatar’) submitted an application to the ICAO Council following the severance by the Governments of Bahrain, Egypt and the United Arab Emirates of diplomatic relations with Qatar and the adoption of restrictive measures relating to terrestrial, maritime and aerial lines of communication with Qatar, which included certain aviation restrictions. According to Bahrain, Egypt and the United Arab Emirates, these restrictive measures were taken in response to Qatar’s alleged breach of its obligations under certain international agreements, including, in particular, the Riyadh Agreement of 23 and 24 November 2013.

Bahrain, Egypt and the United Arab Emirates raised preliminary objections before the ICAO Council, contending that the Council lacked jurisdiction to resolve the claims raised by Qatar and that these claims were inadmissible. By its Decision of 29 June 2018, the Council rejected these objections. Bahrain, Egypt and the United Arab Emirates thus decided to appeal the Decision before the International Court of Justice, as provided for by Article 84 of the Chicago Convention, and filed a joint Application to that effect.

In its Judgment the Court rejected the appeal brought by Bahrain, Egypt and the United Arab Emirates from the Decision of the ICAO Council and held that the ICAO Council has jurisdiction to entertain the application submitted to it by the Government of the State of Qatar on 30 October 2017 and that the said application is admissible.

Permanent Court of Arbitration

The ‘Enrica Lexie’ Incident (Award)

On 2 July 2020, the Permanent Court of Arbitration published the award of the Arbitral Tribunal in respect of the ‘Enrica Lexie’ Incident. The arbitration was instituted on 26 June 2015 when Italy served on India a Notification and Statement of Claim under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS).

According to Italy, the Parties’ dispute concerned an incident that occurred on 15 February 2012 approximately 20.5 nautical miles off the coast of India involving the MV ‘Enrica Lexie’, an oil tanker flying the Italian flag, and India’s subsequent exercise of jurisdiction over the incident, and over two Italian Marines from the Italian Navy, who were on official duty on board the ‘Enrica Lexie’ at the time of the incident (the ‘Marines’). Italy argued that (i) India’s legislation on which, according to Italy, India’s conduct vis-à-vis the ‘Enrica Lexie’ and the Marines was based is incompatible with UNCLOS, (ii) India had violated Articles 87, 92, 97, 100 and 300 of UNCLOS, and (iii) by the same conduct, India had violated the immunity of the Marines.

India raised objections to the jurisdiction of the Arbitral Tribunal and the admissibility of Italy’s claims. According to India, the ‘incident’ in question concerned the killing of two Indian fishermen on board an Indian vessel named the ‘St. Antony’, allegedly by rifle fire from the two Marines stationed on the ‘Enrica Lexie’. India argued that Italy had violated India’s rights under Articles 56, 58, 87, 88 and 90 of UNCLOS.

The Arbitral Tribunal established that it has jurisdiction over the dispute and found that India’s counter-claims are admissible.

The Tribunal decided in respect of Italy’s submission that the Marines were entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines. The Tribunal further decided that India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marines, and that no other remedies are required.

In respect of India’s submission, the Tribunal found that by interfering with the navigation of the ‘St. Antony’ Italy had acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention and that this finding constitutes adequate satisfaction for the injury to India’s non-material interests. Furthermore, it decided that India is entitled to the payment of compensation in connection with loss of life, physical harm and material damage to property and moral harm suffered by the captain and other crew members of the ‘St. Antony’, which by its nature cannot be redressed through restitution.