|III.||The International Court of Justice|
Determination of the Existence of a Dispute
(Germany v. United States of America)
Judgment of 27 June 2001
[p. S.O. Parra-Aranguren] 4. The existence of a dispute is a condition sine qua non established by Article I of the Optional Protocol for the compulsory jurisdiction of the Court. It is also required by the Statute of the Court. Article 38, paragraph 1, of the Statute states that the function of the Court in contentious cases "is to decide in accordance with international law such disputes as are submitted to it". Article 36, paragraph 2, and paragraph 1 of Article 40 also refer to the dispute between the Parties. Accordingly, the Court has stated that the existence of a dispute is an "essentially preliminary" question and that it is "the primary condition for the Court to exercise its judicial function" (Nuclear Tests (Australia v. France), Judgment of 20 December 1974, I.C.J. Reports 1974, p. 260, para. 24; pp. 270-271, para. 55).
[pp. S.O. Parra-Aranguren] 7. As recognized in many paragraphs of the Judgment, e.g., the first sentence of paragraph 39, the Parties agree that the United States did not inform the LaGrand brothers without delay following their arrest of their rights under Article 36, paragraph 1 (b), of the Vienna Convention, thus violating that provision. Paragraph 39 of the Judgment adds that the United States did not deny that such violation "has given rise to a dispute between the two States".
8. However, the Court explained in its Judgment of 11 June 1998 that
"'in the sense accepted in its jurisprudence and that of its predecessor, a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between parties ...' (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 99-100, para. 22); and that '[i]n order to establish the existence of a dispute, "It must be shown that the claim of one party is positively opposed by the other" (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328); and further, "Whether there exists an international dispute is a matter for objective determination" (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74)' (I.C.J. Reports 1995, p. 100)." (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria). Preliminary Objections, I.C.J. Reports 1998, pp. 314-315, para. 87).
9. The Court has also stated that
"it is not sufficient for one party to a contentious case to assert that a dispute exists with the other party. A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non-existence. Nor is it adequate to show that the interests of the two parties to such a case are in conflict." (South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962, I.C.J. Reports 1962, p. 328.)
10. On the basis of these criteria, even assuming that the United States had not denied the existence of a dispute, it has not been shown objectively to the Court that the Parties maintain positively opposed positions on this point. On the contrary, as it appears from the submissions quoted above, they agree on the breach by the United States of its violation of Article 36, paragraph 1 (b), of the Vienna Convention. Therefore, in my opinion, the Court does not have jurisdiction under Article I of the Optional Protocol to decide whether the United States breached Article 36, paragraph 1 (b), when arresting the LaGrand brothers. Nor can the Court exercise its functions under Article 38, paragraph 1, of its Statute. For this reason I voted against operative paragraph 128 (1) and (2) (a) of the Judgment.