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World Court Digest

III. The International Court of Justice
3. THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE
3.1. General Questions

¤ 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. ] 62. Whereas, relying on the Order made by the Court on 2 June 1999 in the case concerning Legality of Use of Force (Yugoslavia v. Belgium) (I.C.J. Reports 1999, para. 44), Belgium contended in the course of the present proceedings that, since the Congo had not expressly invoked both of the above-mentioned declarations until a late stage, in the second round of oral argument, the Court could not take them into consideration for the purposes of deciding whether or not it could indicate provisional measures in the present case (see paragraph 42 above);

63. Whereas, notwithstanding a certain lack of precision in the terms whereby, in its Application, the Congo set out the bases on which it sought to found the jurisdiction of the Court, the Application does nonetheless refer to the acceptance of the Court's jurisdiction by Belgium; whereas, in accordance with Article 38, paragraph 2, of the Rules of Court, "[t]he application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based" (emphasis added), and whereas it is in any event for the Court to ascertain in each case whether it has jurisdiction; whereas, as recalled above (see paragraph 61), the declarations whereby Belgium and the Congo recognized the compulsory jurisdiction of the Court were duly deposited with the Secretary-General of the United Nations, who, in accordance with Article 36, paragraph 4, of the Statute, transmitted copies thereof to the Court and to all the States parties to the Statute; whereas these declarations were reproduced in the Yearbook of the Court; whereas the declarations in question are therefore within the knowledge both of the Court and of the Parties to the present case, who cannot but be aware that "the Court's jurisdiction ... is based on the consent of States, expressed in a variety of ways including declarations made under Article 36, paragraph 2, of the Statute" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 32, para. 44); whereas, having regard to the terms in which the Application was formulated and to the submissions presented by the Congo, Belgium could readily expect that the declarations made by the two Parties would be taken into consideration as a basis for the jurisdiction of the Court in the present case; whereas Belgium was therefore in a position to prepare and put forward any such argument as it thought fit in this regard; and whereas the fact that the Congo invoked those declarations in the second round of oral argument on the request for the indication of provisional measures was not likely to "seriously jeopardize the principle of procedural fairness and the sound administration of justice" (Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, para. 44);

64. Whereas, in view of the foregoing, the Court considers that there is nothing to prevent it, for purposes of deciding whether or not it can indicate provisional measures in the present case, from taking account of the declarations whereby the Parties have accepted its compulsory jurisdiction;

[p. ] 76. Whereas, while the Parties appear to be willing to consider seeking a friendly settlement of their dispute, their positions as set out before the Court regarding their respective rights are still a long way apart; whereas, while any bilateral negotiations with a view to achieving a direct and friendly settlement will continue to be welcomed, the outcome of such negotiations cannot be foreseen; whereas it is desirable that the issues before the Court should be determined as soon as possible; whereas it is therefore appropriate to ensure that a decision on the Congo's Application be reached with all expedition;

[pp. S.O. Parra-Aranguren] 7. In a different Order, rendered on the same day, 2 June 1999, the Court confirmed that it could not take into consideration the new title of jurisdiction advanced in the second round of oral pleadings.

8. Notwithstanding the above-mentioned decisions, the Court adopts a different position in the present case and maintains that the invocation by Congo of the optional clause declarations in the second round of oral argument was not likely seriously to jeopardize the principle of procedural fairness and the sound administration of justice (Order, paras. 63-64).

9. As first argument in support of its new position, the Court recalls that Article 38, paragraph 2, of the Rules of Court requires that "[t]he application shall specify, as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based" (emphasis added by the Court). However, in my opinion, this is not a good reason, because that paragraph was in force in June 1999 and it did not prevent the Court from reaching a different conclusion in the above-mentioned cases.

10. Secondly, paragraph 63 of the Order states that "it is in any event for the Court to ascertain in each case whether it has jurisdiction"; but, in my opinion, this task of the Court is different from making researches of its own to discover possible grounds of jurisdiction not indicated by the parties.

11. In the third place, the Court maintains that the optional clause declarations made by Belgium and the Democratic Republic of the Congo are "within the knowledge both of the Court and of the Parties", because they were duly deposited with the Secretary-General of the United Nations, who transmitted copies thereof to the Court and to all the States parties, and because they are reproduced in the Yearbook of the Court. However, in my opinion, neither possible knowledge of the optional clause declarations made by the Parties nor their reproduction in the Yearbook of the Court incorporate them as part of the Application filed by the Democratic Republic of the Congo against Belgium.

12. Finally, the Court states that,

"having regard to the terms in which the Application was formulated and to the submissions presented by the Congo, Belgium could readily expect that the declarations made by the two Parties would be taken into consideration as basis for the jurisdiction of the Court in the present case" (Order, para. 63);

that Belgium was in a position to prepare and put forward any such argument as it thought fit in this regard; and that therefore Belgium was not prejudiced by the fact that the Democratic Republic of the Congo invoked its optional clause declarations in the second round of oral argument. In my opinion, these statements may only be considered wishful thinking not supported by the records.

13. Moreover, the Democratic Republic of the Congo indicated its optional clause declaration as a ground for the jurisdiction of the Court in three separate Applications filed by it in the Registry on 23 June 1999 (case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), (Democratic Republic of the Congo v. Burundi) and (Democratic Republic of the Congo v. Rwanda)). The Democratic Republic of the Congo did not proceed in the same way in the present case and has given no explanation for indicating its optional clause declaration as a round for the jurisdiction of the Court in the second round of oral argument. Therefore, in my opinion, it cannot be taken into account by the Court.