International Court of Justice

  1. (1)

    Nicaragua v. Colombia (Judgment)

On 21 April 2022, the International Court of Justice (‘ICJ’ or the ‘Court’) delivered its judgment in the case concerning Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia).

On 27 November 2013 Nicaragua requested the Court to adjudge and declare that Colombia is in breach of: its obligation not to use or threaten to use force under Article 2(4) of the UN Charter and international customary law; its obligation not to violate Nicaragua’s maritime zones as delimited in paragraph 251 of the ICJ judgment of 19 November 2012 as well as Nicaragua’s sovereign rights and jurisdiction in these zones; its obligation not to violate Nicaragua’s rights under customary international law as reflected in Parts V and VI of UNCLOS; and that, consequently, Colombia is bound to comply with the judgment of 19 November 2012, to wipe out the legal and material consequences of its internationally wrongful acts, and to make full reparation for the harm caused by those acts.

In support of its claim, Nicaragua quoted various declarations allegedly by the highest Colombian authorities showing Colombia’s ‘rejection of the Court’s Judgment’. In particular, Nicaragua quoted Article 5 of Presidential Decree 1946, where an ‘Integral Contiguous Zone’ is described in which, according to the President of Colombia, Colombia ‘will exercise jurisdiction and control over all areas related to security and the struggle against delinquency, and over fiscal, customs, environmental, immigration and health matters and other areas as well’.

In its judgment of 21 April 2022, the Court confirmed that it had jurisdiction, based on Article XXXI of the Pact of Bogotá, and found that Colombia had violated Nicaragua’s rights and jurisdiction in this maritime zone by: authorizing fishing activities, interfering with fishing and marine scientific research activities of Nicaraguan-flagged or Nicaraguan-licensed vessels, interfering with the operations of Nicaraguan naval vessels in Nicaragua’s exclusive economic zone, and by purporting to enforce conservation measures in that zone. Moreover, the Court concluded that the ‘integral contiguous zone’ established by Colombia by Presidential Decree is not in conformity with customary international law.

The Court found that Colombia must immediately cease the conduct referred to and must, by means of its own choosing, bring into conformity with customary international law the provisions of its Presidential Decree in so far as they relate to maritime areas declared by the Court in its 2012 judgment to appertain to the Republic of Nicaragua.

  1. (2)

    Ukraine v. Russian Federation (Indication of provisional measures)

On 16 March 2022, the ICJ delivered its order on the request for the indication of provisional measures submitted by Ukraine in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation).

On 26 February 2022, Ukraine filed an Application instituting proceedings against the Russian Federation contending that the Russian Federation has falsely claimed that acts of genocide had occurred in the Luhansk and Donetsk oblasts of Ukraine, recognized on that basis the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’, and then declared and implemented a ‘special military operation’ against Ukraine with the express purpose of preventing and punishing purported acts of genocide that have no basis in fact. Ukraine denied that any such genocide had occurred. Together with the Application, Ukraine submitted a Request for the indication of provisional measures.

The Russian Federation indicated, on 5 March 2022, that it had decided not to participate in the oral proceedings and communicated to the Court that the Court lacks jurisdiction to entertain the case and requested the Court to refrain from indicating provisional measures and to remove the case from its list.

The Court observed that the context in which the present case comes before it is well known and declared itself ‘to be profoundly concerned about the use of force by the Russian Federation in Ukraine, which raises very serious issues of international law’. The Court regretted the decision taken by the Russian Federation not to participate in the oral proceedings and observed that the non-appearance of one of the States concerned cannot by itself constitute an obstacle to the indication of provisional measures. The Court concluded that, prima facie, it has jurisdiction pursuant to Article IX of the Genocide Convention to entertain the case and considered that it cannot accede to the Russian Federation’s request that the case be removed from the General List for manifest lack of jurisdiction.

The Court pointed out its power to indicate provisional measures under Article 41 of the Statute and noted that Ukraine had argued that it seeks provisional measures to protect its rights ‘not to be subject to a false claim of genocide’, and ‘not to be subjected to another State’s military operations on its territory based on a brazen abuse of Article I of the Genocide Convention’.

The Court observed that, in accordance with Article I of the Convention, all States parties thereto have undertaken ‘to prevent and to punish’ the crime of genocide, but that ‘Article I does not specify the kinds of measures that a Contracting Party may take to fulfil this obligation. However, the Contracting Parties must implement this obligation in good faith, considering other parts of the Convention, in particular Articles VIII and IX, as well as its Preamble’. Further, the Court emphasized that, in discharging its duty to prevent genocide, ‘every State may only act within the limits permitted by international law’.

The Court further observed that, at the present stage of the proceedings, it is not in possession of evidence substantiating the allegation of the Russian Federation that genocide has been committed on Ukrainian territory. However, according to the Court, it is doubtful that the Convention, in light of its object and purpose, authorizes a Contracting Party’s unilateral use of force in the territory of another State, for the purpose of preventing or punishing an alleged genocide.

Subsequently, the Court considered that Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine. The Court then concluded that any disregard of this plausible right could cause irreparable prejudice to this right and that there is urgency, in the sense that there is a real and imminent risk that such prejudice will be caused before the Court makes a final decision in the case.

In particular, the Court considered that a military operation on the scale carried out by the Russian Federation on the territory of Ukraine inevitably causes loss of life, mental and bodily harm, and damage to property and to the environment and that the civilian population affected by the present conflict is extremely vulnerable. The ‘special military operation’ being conducted by the Russian Federation has resulted in numerous civilian deaths and injuries. It has also caused significant material damage, including the destruction of buildings and infrastructure. Attacks are ongoing and are creating increasingly difficult living conditions for the civilian population. Many persons have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating. A very large number of people are attempting to flee from the most affected cities under extremely insecure conditions.

The Court concluded that the conditions required by its Statute for it to indicate provisional measures are met and indicated the following provisional measures: (1) The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine; (2) The Russian Federation shall ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of the military operations referred to in point (1); (3) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

  1. (3)

    Democratic Republic of the Congo v. Uganda (Reparations)

On 9 February 2022, the ICJ delivered its judgment on the question of reparations in the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda). In its judgment the Court fixed the following amounts for the compensation due from Uganda to the Congo for the damage caused by the violations of international obligations by Uganda, as found by the Court in its judgment of 19 December 2005: US$225,000,000 for damage to persons; US$40,000,000 for damage to property; US$60,000,000 for damage related to natural resources.

  1. (4)

    Armenia v. Azerbaijan (Indication of provisional measures)

On 7 December 2021, the ICJ delivered its order on the request for the indication of provisional measures made by the Republic of Armenia in the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan). The Court indicated the following provisional measures: Azerbaijan shall, in accordance with its obligations under CERD, (a) Protect from violence and bodily harm all persons captured in relation to the 2020 Conflict who remain in detention, and ensure their security and equality before the law; (b) Take all necessary measures to prevent the incitement and promotion of racial hatred and discrimination, including by its officials and public institutions, targeted at persons of Armenian national or ethnic origin; (c) Take all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries and artefacts; (2) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

  1. (5)

    Azerbaijan v. Armenia (Indication of provisional measures)

On 7 December 2021, the ICJ delivered its order on the request for the indication of provisional measures made by the Republic of Azerbaijan in the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia). The ICJ indicated the following provisional measures: (1) Armenia shall, in accordance with its obligations under the CERD, take all necessary measures to prevent the incitement and promotion of racial hatred, including by organizations and private persons in its territory, targeted at persons of Azerbaijani national or ethnic origin; (2) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.