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| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.10. | Provisional Measures |
| 3.10.3. | Provisional Measures and Jurisdiction |
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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 Measures
Order of 10 July 2002
[p. 241] 58. Whereas on a request for provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to indicate such measures unless the provisions invoked by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established; whereas moreover, once the Court has established the existence of such a basis for jurisdiction, it should not however indicate measures for the protection of any disputed rights other than those which might ultimately form the basis of a judgment in the exercise of that jurisdiction (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 35);
[p. 247] 79. Whereas at this stage in the proceedings the Congo has not shown that its attempts to enter into negotiations or undertake arbitration proceedings with Rwanda (see paragraph 51 above) concerned the application of Article 29 of the Convention on Discrimination against Women; whereas nor has the Congo specified which rights protected by that Convention have allegedly been violated by Rwanda and should be the object of provisional measures; whereas the preconditions on the seisin of the Court set by Article 29 of the Convention therefore do not appear prima facie to have been satisfied;
[pp. 248-249] 86. Whereas the Congo lastly seeks to found the jurisdiction of the Court on Article 14, paragraph 1, of the Montreal Convention, which reads as follows:
“Any dispute between two or more Contracting States concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court”;
and whereas at the close of its Application the Congo made the following submission inter alia: “by shooting down a Boeing 727 owned by Congo Airlines on 9 October 1998 in Kindu, thereby causing the death of 40 civilians, Rwanda ... violated ... the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation of 23 September 1971”;
87. Whereas both the Congo and Rwanda are parties to the Montreal Convention and have been since 6 July 1977 in the case of the Congo and 3 November 1987 in the case of Rwanda;
88. Whereas the Congo has not however asked the Court to indicate any provisional measure relating to the preservation of rights which it believes it holds under the Montreal Convention; whereas accordingly the Court is not required, at this stage in the proceedings, to rule, even on a prima facie basis, on its jurisdiction under that Convention nor on the conditions precedent to the Court’s jurisdiction contained therein;
[p. 256 Decl. Higgins] I do not agree with one of the limbs relied on by the Court in paragraph 79 of its Order.
It is well established in international human rights case law that it is not necessary, for the purpose of establishing jurisdiction over the merits, for an applicant to identify which specific provisions of the treaty said to found jurisdiction are alleged to be breached. See, for example, the findings of the Human Rights Committee on Stephens v. Jamaica (United Nations, Official Records of the General Assembly, Fifty-First Session, Supplement No. 40 (A/51/40)); B.d.B. et al v. The Netherlands (ibid., Forty-Fourth Session, Supplement No. 40 (A/45/40)); and many other cases. A fortiori is there no reason for the International Court of Justice, in establishing whether it has prima facie jurisdiction for purposes of the indication of provisional measures, to suggest a more stringent test. It should rather be for the Court itself, in accordance with the usual practice, to see whether the claims made by the Congo and the facts alleged could prima facie constitute violations of any particular clause in the Convention on the Elimination of All Forms of Discrimination against Women, the instrument relied on by the Congo as providing the Court with jurisdiction over the merits.
[p. 260 Decl. Elaraby] 1. I have voted against the rejection of the request for the indication of provisional measures submitted by the Democratic Republic of the Congo, principally because, in accordance with its Statute and its present jurisprudence, the Court should, in principle grant a request for provisional measures once the requirements of urgency on the one hand and likelihood of irreparable damage to the rights of one or both parties to a dispute, on the other, have been established. I am of the opinion that the Court has, under Article 41 of the Statute, a wide-ranging power of discretion to indicate provisional measures. The jurisprudence of the Court has progressively, albeit gradually, advanced from its earlier strict insistence on established jurisdiction to acceptance of prima facie jurisdiction as the threshold for the exercise of the Court’s powers under Article 41 of the Statute. This progressive shift has not, in my view, been reflected in the Order.
2. I see Article 41 of the Statute as the point of departure. Article 41 (1) provides that: “[t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party”, while Article 41 (2) stipulates that “notice of the measures suggested shall forthwith be given to the parties and to the Security Council” (emphasis added).
3. My reading of the two subparagraphs together convinces me that the Court is vested with a wide scope of discretion to decide on the circumstances warranting the indication of provisional measures. The reference to the Security Council underlines the prominence of the link between the Court and the Council in matters related to the maintenance of international peace and security. The Statute moreover does not attach additional conditions to the authority of the Court to grant provisional measures. In point of fact, the jurisdiction of the Court need not be established at this early stage of the proceedings.
[p. 273 S.O. Mavungu] 5. According to its established case law, the Court can only indicate provisional measures if it has prima facie jurisdiction and if so required by the circumstances of a given case: the degree of urgency, the protection of the rights of the parties, the need to contain or not to aggravate the dispute (see infra). In the present case, the Court did not indicate provisional measures because the provisions relied on by the Applicant do not appear to furnish a prima facie basis for its jurisdiction.
6. Whilst approving the general tenor of the Order, I can only partially agree with its operative provisions. I believe that the Court could have established its prima facie juridiction on the basis of at least two compromissory clauses and indicated certain provisional measures or, at the very least, could have indicated such measures proprio motu in the light of the deplorable human tragedy, the losses of human life and the terrible suffering in the east of the Democratic Republic of the Congo as a result of the fighting there (paragraph 54 of the Order). My argument will be substantiated in the following paragraphs.
