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III. The International Court of Justice
2. THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE
2.5. Jurisdiction on the Basis of Treaties
2.5.3. Specific Treaties

¤ Case Concerning Armed Activities
on the Territory of the Congo
(New Application: 2002)
(Democratic Republic of the Congo v. Rwanda)
Request for the Indication of Provisional Measure
Order of 10 July 2002

[p. 246] 73. Whereas the Congo further seeks to found the jurisdiction of the Court directly on Article 66, paragraph (a), of the 1969 Vienna Convention on the Law of Treaties, in accordance with which “[a]ny one of the parties to a dispute concerning the application or the interpretation of article 53 or 64”, relating to conflicts between treaties and peremptory norms of international law, “may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration” (see paragraph 3 above);

74. Whereas Article 66 of the Vienna Convention on the Law of Treaties must be read in conjunction with Article 65, entitled “Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty”;

75. Whereas the Congo does not maintain at the present time that there is a dispute, which could not be resolved under the procedure prescribed in Article 65 of the Vienna Convention, between it and Rwanda concerning a conflict between a treaty and a peremptory norm of international law; whereas the object of Article 66 cited above is not to allow for the substitution of the judicial settlement, arbitration and conciliation procedures under the Vienna Convention on the Law of Treaties for the settlement machinery for disputes relating to the interpretation or application of specific treaties, notably when a violation of those treaties has been alleged;

[pp. 247- 248] 80. Whereas the Congo seeks moreover to found the jurisdiction of the Court on Article 75 of the WHO Constitution, worded as follows:

“Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement”;

and whereas the Congo alleges that Rwanda has infringed the rights guaranteed to its population by Article 1 of that Constitution (see paragraph 27 above);

81. Whereas the Congo has been a party to the WHO Constitution since 24 February 1961 and Rwanda since 7 November 1962 and both are thus members of that Organization;

82. Whereas at this stage in the proceedings the Congo has also not shown that the preconditions on the seisin of the Court set by Article 75 of the WHO Constitution have been satisfied; whereas moreover an initial examination of that Constitution shows that Article 2 thereof, relied on by the Congo, places obligations on the Organization, not on the Member States;

[ p. 248] 83. Whereas the Congo further claims to found the jurisdiction of the Court on Article XIV, paragraph 2, of the Unesco Constitution, pursuant to which:

“Any question or dispute concerning the interpretation of this Constitution shall be referred for determination to the International Court of Justice or to an arbitral tribunal, as the General Conference may determine under its rules of procedure”;

whereas in its Application the Congo invokes Article I of the Constitution and maintains that “[o]wing to the war, the Democratic Republic of the Congo today is unable to fulfil its missions within Unesco ...”;

84. Whereas both the Congo and Rwanda are parties to the Unesco Constitution and have been since 25 November 1960 in the case of the Congo and 7 November 1962 in the case of Rwanda;

85. Whereas Article XIV, paragraph 2, provides for the referral, under the conditions established in that provision, of disputes concerning the Unesco Constitution only in respect of the interpretation of that Constitution; whereas that does not appear to be the object of the Congo’s Application; and whereas the Application does not therefore appear to fall within the scope of that article;

[pp. 280-281 S.O. Mavungu] 29. The dispute between the Democratic Republic of the Congo and Rwanda concerns the application of the WHO Constitution in the case of alleged violatons of the obligations thereunder. Article 75 lays down a prior condition before the Court can be seised: negotiaton or the intervention of the Health Assembly. In oral argument, the Democratic Republic of the Congo, without providing any evidence therefor, informed the Court of various negotiations between the two Parties with a view to achieving global settlement of the armed conflict on Congolese territory, including by the organization of arbitration (CR 2002/38, p. 10-11.) Very possibly the discussion between the Congolese and Rwandan authorities did not specifically concern the obligations of their respective States under the WHO Constitution, but rather the upholding of human rights and of international humanitarian law, as well as the withdrawal of foreign troops from Congolese territory and the conditions for such withdrawal. The allegations by the Democratic Republic of the Congo concerning the violations of the right to health form part of the overall violations of human rights and of international humanitarian law. It may therefore be reasonably considered that the Parties attempted to settle the dispute by negotiation1.

30. When a jurisdictin clause provides for recourse to prior diplomatic negotiations, it is self-evident that the parties have to comply therewith. The requirement is rather an obligation of conduct than of result. In the light of the Court’s case-law, it is for the Courrt itself to rule proprio motu on compliance or non-compliace with that obligation. The Court has moreover given a wide interpretation to the notion of „diplomatc negotiations“ (exchange of views; diplomatic notes, protests, discussions within an international organization, talks) 2.

31. The attitude of each Party during the prior negoiations is crucial in order to assess whether or not this requirement has been met:

«Negotiations do not of necessity always presuppose a more or less lengthy series of notes and despatches; it may suffice that a discussion should have been commenced, and this discussion may have been very short; this will be the case if a deadlock is reached, or if finally a point is reached at which one of the Parties definitely declares himself unable, or refuses, to give way, and there can therefore be no doubt that the dispute cannot be settled by diplomatic negotiation.» (Mavrommatis Jerusalem Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 13.)

32. Article 75 of the Constitution of the WHO provides that the dispute „shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement“. It was apparent from the Parties‘ oral pleadings that the dispute was not capable of settlement by arbitration, nor could it be referred to the Court by a special agreement for judicial settlement. The only remaining option was seisin of the Court by an application instituting proceedings.

1Concerning the legal value of the principle of recourse to prior diplomatic negotiations, see Georges Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour internationale, 1967, p. 125; Paul Guggenheim, Traité de droit international public, Vol. II, 1953, p. 148; Charles De Visscher, Aspects récents du droit procédural de la Cour internationale de Justice, 1966, p. 86; Jacques Soubeyrol, «La négociation diplomatique, élément du contentieux international», Revue générale de droit international public, Vol. 68, 1964, p. 323; Waldock, op. cit, p. 266.
2See inter alia Right of Passage over Indian Territory , I.C.J. Reports 1960, p. 148-149; South West Africa, Preliminary Objections, I.C.J. Reports 1962, p. 344 et seq.; Border and Transborder Armed Activities (Nicaragua v. Honduras), I.C.J. Reports 1988, p. 99 et seq.