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| III. | The International Court of Justice |
| 1. | FUNDAMENTAL PRINCIPLES |
| 1.4. | Political Questions/ Determination of the Existence of a Dispute |
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Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium)
Request for the Indication of Provisional Measures
Order of 8 December 2000
[p. Decl. Oda] 8. I would question whether, at the time of the Application of 17 October 2000, there was in fact between the Congo and Belgium "[a] legal dispute[s] concerning: (a) the interpretation of a treaty; (b) any question of international law; [etc]" (Statute of the Court, Art. 36, para. 2) or a dispute "arising out of the interpretation or application of the [Vienna Convention an Diplomatic Relations]" (Optional Protocol concerning the Compulsory Settlement of Disputes, Art. 1). Moreover, in order for such a dispute or legal dispute to exist, there have to be legal claims raised by one party reflecting the assertion of a breach by the other party of its rights and interests, and denial of those claims by the other party.
9. In its Application of 17 October 2000 the Congo did not present its submissions and thus did not specify the dispute, in the terms as I have referred to them above, alleged to exist between it and Belgium.
The Congo simply stated that it believed, in my view erroneously, that Mr. Yerodia Ndombasi, as Foreign Minister, would be arrested in consequence of the warrant issued by the Belgian judge. Such a belief or suspicion regarding possible or potential inconvenience cannot, in my view, amount to a claim in a legal sense and cannot constitute a legal basis for the Court's jurisdiction. Towards the end of the oral pleadings, counsel for the Congo stated that:
"[Congo] requests the Court to order Belgium to comply with international law; to cease and desist from any conduct which might exacerbate the dispute with [the Congo]; specifically, to withdraw the international arrest warrant issued against Minister Yerodia" (CR 2000/34, p. 23);
and the Agent for Congo asked the Court "to determine what the law is ... and ... [to] persuad[e] the Belgian judge, Mr. Vandermeersch, to withdraw his international arrest warrant" (ibid., p. 27). I repeat that the Congo neither identified a legal dispute with Belgium nor specified the rights and interests allegedly breached by Belgium. The Congo simply wanted confirmation of certain legal principles of international law concerning the exercise of State jurisdiction.
[pp. Decl. Oda] 11. It might be argued that the issue of the existence of a dispute – a legal dispute as referred to in Article 36, paragraph 2, of the Court's Statute, or a dispute as referred to in the 1961 Optional Protocol - is a matter to be dealt with at the jurisdictional stage of a case before this Court. In my view, however, that issue is not the same as a preliminary objection raised by a respondent State, in a case initiated by unilateral application, concerning the issue of whether a State may be compulsorily brought to the Court in consequence of its voluntary acceptance in advance of the Court's jurisdiction, in circumstances where, in principle, the consent of the parties is essential.
The existence of such a "legal dispute" or of a "dispute" is, theoretically, a matter to be dealt with prior to a decision on whether the Court has jurisdiction. It is true that this issue may generally be dealt with at the jurisdictional phase once the case is registered with the Court (see "Preliminary Objections" under Section D (Incidental Proceedings) of the Rules of Court).
12. However, if by chance the Court finds itself in a position (as has been seen in certain recent cases) to face this question much earlier, namely prior to the jurisdictional phase, it should not hesitate to do so. Interim Protection (Section D (Incidental Proceedings) of the Rules of Court) presents an ideal opportunity to deal with this question as a "pre-preliminary" question. The Court could make a decision to remove a case from its General List at that stage or to continue to be seised of it, after having examined whether there existed a "legal dispute" or a "dispute".
If the Court had to wait until the jurisdictional phase before dealing with the question of whether or not there actually existed a justiciable dispute, there would be an excessive number of similar cases brought to the Court simply for the reason that a State believed that another State had acted contrary to international law. I am afraid that many States would then withdraw their acceptance of the Court's compulsory jurisdiction in order to avoid such a distortion in the presentation of cases brought by other States.
