PAPER NO.

53/2011 DECEMBER 2011

Jurisdiction, Procedure and the Transformation of International Law: from Nottebohm to Diallo in the ICJ
Mads Andenas (Edited by Mads Andenas, Neil Andrew and Masayuki Tamaruya)

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Electronic copy available at: http://ssrn.com/abstract=1972918

allowing him to combine arguments from different national traditions and disciplines within national law. ‘Liechtenstein gegen Guatemala.J.php 3 K Lipstein and E H Loewenfeld. Gedachtnisschrift Ludwig Marxer. and a Member of the UN Working Group on Arbitrary Detention. 1. Procedure and the Transformation of International Law: from Nottebohm to Diallo in the ICJ. Der Nottebohm–Fall’. jurisdiction. 4.Jurisdiction. state intent.law. procedure and evidence are incrementally remedying these limitations. His involvement in public international law.com/abstract=1972918 .cam.ac. Mads Andenas1 SUMMARY Kurt Lipstein’s involvement as counsel in Nottebohm2 on diplomatic protection before the International Court of Justice demonstrated to him the limitations of international justice. Kurt Lipstein’s scholarship moved across the boundaries that divide the law.3 demonstrated to him the limitations of international justice. 1 Electronic copy available at: http://ssrn. Changing concepts of state sovereignty. University of Oslo. mainly through the analysis of the Diallo case of 2010. This article shows how international law provides more effective protection of individual rights. 2 Extensive information about Professor Lipstein ’s career and involvement in the Nottebohm case is available in the Squire Law Library’s Eminent Scholars Archive: http://www. Zurich 1963 275-325. procedure and evidence are incrementally remedying these limitations. individual rights. 1955 I. Changing concepts of state sovereignty. Guatemala.4 1 Professor. 4 Lichtenstein v. jurisdiction. Lipstein and the Nottebohm case Kurt Lipstein took over as counsel in the Nottebohm case of 1955 from Hersh Lauterpacht who had been appointed a judge of the International Court of Justice.C. as counsel in a case before the International Court of Justice.squire. individual rights.uk/eminent_scholars/kurt_lipstein. Formerly The Director of The British Institute of International and Comparative Law and a former General Editor of The International and Comparative Law Quarterly.

In such circumstances I am bound to proceed on the assumption that Liechtenstein might 5 K Lipstein. The proceedings involved more than one hundred and seventy one appeals of various kinds. designed to expropriate. 47 (1977) 2 Electronic copy available at: http://ssrn.J. by the Guatemalan authorities. going with Kurt Lipstein and Lichtenstein. He was thus prevented from assuming the personal direction of the complex network of litigation. including in cases where stateless Germans had been granted citizenship. who were acting not for reasons of their own but at the instance of the United States Government. all of the cases involved. Nottebohm was arrested on October 19. Three days later he was deported to the United States and interned there for two years and three months. 1943. which could not be dealt with effectively in the absence of the principally interested party.’ 2 Wig and Gavel (1981) 6 . Counsel for Guatemala has demonstrated. and ‘a meaningful connection’ to the state. ‘Acta et Agenda’. the International Court required ‘effective nationality’. Nottebohm was not permitted to return to Guatemala. or to confront his accusers in open court. To recognise a naturalisation giving the right to grant diplomatic protection. whether movable or immovable. Further.5 The Court however did not recognise the Lichtenstein citizenship. in a fair and competent manner. Mr.com/abstract=1972918 . Judge Read gives this explanation: There is another aspect of this case which I cannot overlook. It is common ground that Mr. without compensation to him. Nottebohm. 36 Cambridge L. the charge against Mr. In 1944 a series of fifty-seven legal proceedings was commenced against Mr. There was no trial or inquiry in either country and he was not given the opportunity of confronting his accusers or defending himself. He was allowed no opportunity to give evidence of the charges made against him. Nottebohm of treasonable conduct. the existence of a network of litigation. He was turned over to the armed forces of the United States on the same day. ‘The Nottebohm Case–Reflections by Counsel. and K Lipstein.Lichtenstein claimed to exercise diplomatic protection for a naturalised citizen. Three judges dissented. all of his properties. The two requirements served to avoid many claims for reparation for confiscations. This was an invention. or giving evidence on his own behalf. as a central and vital issue.

9 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo). if the case should be considered on the merits. 2. I. Diallo in the International Court The International Court had an opportunity to revisit its restrictive practice on diplomatic protection and individual rights in Congo v Uganda. It is only recently that the International Court has opened up for diplomatic protection as an effective tool in the protection of individual rights.C.6 Courts were not strong on upholding individual rights in any jurisdiction in the 1940s or 1950s. 4 at 35. jurisdiction and state intent. and rules of procedure and evidence. Judgment. 1955 I. should be granted. ICJ Reports 2005. rather than in upholding them. Judge Simma took another approach: humanitarian and human rights law are obligations erga omnes which by their very nature are the concern of all States. It took time for the human rights protection set out in the Universal Declaration of Human Rights of 1948 to take effect through human rights treaties and giving weight to individual rights in the application of international law more generally. national or international. In his separate dissent. It is now appropriate to turn to 6 7 Lichtenstein v. The majority of the International Court reflected a general view on the role of courts in restricting rights of the individual against the state.9 the Guinean nationality of Mr Diallo was not in question. and the Court could then consider the human rights violations. 334. I do not think that a plea in bar. 168. Judgment.8 In Diallo. Reports 2010 3 . and it did so through doctrines of state sovereignty.be entitled to a finding of denial of justice. ICJ Reports 2005. dissenting opinion of Judge Read. I cannot overlook the fact that the allowance of the plea in bar would ensure that justice would not be done on. which would have such an effect. Individual rights were previously not the business of the International Court. In view of this situation.C. Guatemala.J. any plane. unless the grounds on which it is based are beyond doubt.7 But the majority of Court used evidential issues relating to citizenship as an effective limiting mechanism. 168 8 See separate opinion by Judge Simma in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda).J. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda).

11 Art 92 of the UN Charter. both in the framework of the universality of human rights. The International Court’s judgment in Diallo is a remarkable decision contributing to the widening and deepening of international law and with consequences for several fundamental questions. the Court had to overcome a series of jurisdictional and procedural hurdles. at regional level. Trindade holds an LLM and a PhD from Cambridge. the prohibition against inhumane and degrading treatment was confirmed (in an obiter statement) as customary public international law with a choice of words that opens for a hardening of customary law to jus cogens. to the best of my knowledge. In bringing the transformation of international law one step further.12 All the permanent judges of the International Court agreed that Congo had violated the probation on arbitrary detention and expulsion and that the violations gave rise to a right of compensation. customary law. 12 The Judgment on the preliminary objections to jurisdiction raised by the Russian Federation on 1 April 2011 on the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) indicates the limits to the transformation in the International Court’s approach to jurisdiction this far.the opening paragraph of Judge Cançado Trindade’s Separate Opinion in the Diallo case:10 This is the first time in its history. the Diallo judgment develops the International Court as ‘the principal judicial organ of the United Nations’11 at the top of an open international law system. including the role of the International Court and international law in making human rights effective. the 1966 UN Covenant on Civil and Political Rights and. and several substantive rules. the 1981 African Charter on Human and Peoples’ Rights. namely. erga omnes and jus cogens rules. 4 . as clarified by the Joint Declaration of 10 Antônio Augusto Cançado Trindade is one of the several judges and counsel in this case who were taught by Kurt Lipstein in Cambridge. indicates solutions to fragmentation problems. together. that the International Court of Justice has established violations of the two human rights treaties at issue. evidence. The International Court arguably went further than the UN Human Rights Committee (HRC) and European Court of Human Rights (ECtHR). To achieve this. at universal level. The International Court’s use of sources from other international and regional bodies as sources of authority. Sir Christopher Greenwood is of course as Cambridge as light blue can get. In Diallo.

On 31 October 1995 the Prime Minister issued an expulsion order against Mr Diallo. 168. Mr Diallo. Mr Diallo initiated various steps. Only States may be parties to cases before the International Court. to recover alleged debts from the State and several companies. in developing a substantive prohibition on arbitrary expulsion going beyond the procedural requirements. and on 31 January 1996. 3. As the managing director of the two companies. More than a year later the public prosecutor in Kinshasa ordered his release. 5 . ICJ Reports 2005. goes in the same direction. Consular and human rights protection are combined. Democracy and Legitimacy'. Moving freely across the boundaries that divide the law. Facts and Findings in Diallo.14 the International Court contributes to common sources and methods and to the foundation for a level of unity or coherence of international law. The legality requirement is developed. The open use of sources of law. a Guinean citizen resident in the Congo for thirty-two years. Judgment. 14 J H H Weiler 'The Geology of International Law: Governance. and not to categorise or attribute in a taxonomic exercise reducing effective protection. The facts of Diallo allowed the International Court to adopt the substantive approach to erga omnes obligations of Judge Simma’s dissenting opinion Congo v Uganda. He was arrested and imprisoned on 25 January 1988. as is the review of national interpretations of domestic law. 13 offering solutions to challenges of fragmentation and effectiveness. or geological layers as Joseph Weiler described them in his celebrated 2004 article. (2004) 64 Heidelberg Journal of International Law 547–62. deported to Guinea. and Mr Diallo’s case came before the Court by virtue of Guinea seeking to exercise 13 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda). including judicial ones. who was again detained.Judges Keith and Greenwood disagreeing with the majority on this point. Mr Diallo was the managing director and. including regional human rights courts as authority. founded two companies: an import-export company and a company specializing in container transport of goods. the sole member of these private limited liability companies. in the end. and the approach to evidentiary issues in human rights cases.

But the 1995-96 detention and expulsion were arbitrary and in violation of the ICCPR and the African Charter. The Court ruled in its 2007 Judgment on Preliminary Objections that Guinea could exercise diplomatic protection for Mr Diallo’s direct rights as a member of the private limited liability companies. Brussels 2003). all the claims failed that were based on Mr Diallo’s direct rights as a member or as managing director of the private limited liability companies. In the 2010 Judgment on Merits. Claims concerning the 1988-89 arrest were submitted too late and rejected. Congolese restrictions on these rights did not constitute a violation of any protected right to property. internationally guaranteed human rights. is not the applicant State: the subject of those rights is Mr A S Diallo. Judge Cançado Trindade explains the new approach: The subject of the rights that the Court has found to have been breached by the respondent State in the present case. ‘Droit des Etats et droits des individus dans le cadre de la protection diplomatique’. 4. an individual. ‘La protection diplomatique et l’évolution de son domaine d’application actuelle’. C Amerasinghe. Developing Consular Protection and Human Rights Already in the 2007 Judgment on Preliminary Objections. in J-F Flauss (ed) La Protection Diplomatique: Mutations Contemporaines et Pratiques Nationales 64 (Bruylant. the International Court had moved away from the formalistic and traditional limitations15 on diplomatic protection: Owing to the substantive development of international law over recent decades in respect of the rights it accords to individuals. The procedure for the vindication 15 See the discussion in G Gaja. inter alia. (2003) 86 Rivista di diritto internazionale 5. Universelles Völkerrecht: Theorie und Praxis 801–02 (Duncker & Humblot. There was however no violation of the prohibition of degrading or inhumane treatment. A Verdross and B Simma. L Condorelli. G Gaja. Diplomatic Protection 329–33 (2008). has subsequently widened to include. Berlin 1984). and rejected the Congolese objections on grounds of failure to exhaust local remedies. and gave rise to a right of compensation. ‘The Position of Individuals in International Law: An ILC Perspective’.diplomatic protection of his rights. originally limited to alleged violations of the minimum standard of treatment of aliens.) In his Separate Opinion to the Judgment of 2010 (on the merits). (2010) 21 EJIL 11. 6 . (Para 39. the scope ratione materiae of diplomatic protection.

16 as already mentioned. Arbitrary Expulsion and Detention. 168 17 See separate opinion by Judge Simma in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda). Uganda could not satisfy the Court about the Ugandan nationality of the victims of human rights abuses. ICJ Reports 2005. Mr Diallo had not been informed at the time of his arrest of his right to request consular assistance from his country.) In Congo v Uganda. The Court discussed the legality requirement.17 In Diallo. and taking the opportunity to clarify that the prohibition 16 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda). In his separate opinion in Congo v Uganda. (Para 223. in the course of the proceedings (written and oral phases) as to the merits. So in that case the traditional application of diplomatic protection became an effective limiting mechanism. the Guinean nationality of Mr Diallo was not in question. ICJ Reports 2005. first addressing Mr Diallo’s rights as an individual (paras 21-98). and then his rights as a member or as managing director of the private limited liability companies (paras 99-159). 7 . but the substantive law applicable in the present case. and the Court could then consider the human rights violations.of the claim originally utilized (by the applicant State) was that of diplomatic protection. Judgment.—is the International Law of Human Rights. The Intenational Courtheld that the Congo was in breach of Article 36(1)(b) of the Vienna Convention on Consular Relations of 1963. Judgment. not accepting the claim for a national security exception. 334. and Degrading and Inhuman Treatment The International Court provided an extensive analysis of the alleged violation of international human rights obligations. 168. Judge Simma argued for the application of humanitarian and human rights law as obligations erga omnes which by their very nature are the concern of all States. to which both Guinea and the DRC were parties (paras 90-98). 5.—as clarified after the Court’s Judgment of 2007 on Preliminary Objections.

The Court relied on the jurisprudence of other international and regional human rights bodies. Secondly. There was breach of the domestic law requirements of 18 Judge Cançado Trindade in his Separate Opinion provides an extensive discussion of the prohibition of arbitrariness in the international law of human rights (paras 26-36). an expulsion must not be arbitrary in nature (para 65). Third. compliance with national law is a necessary condition but not a sufficient one. It also found support in the interpretation by the European Court of Human Rights and the Inter-American Court of Human Rights of their respective human rights conventions (para 68). the Court in Diallo forcefully has staked its claim as an arbiter of human rights to be reckoned with’. The Court set out three conditions that follow from this requirement of legality. there is no limitation to procedural rights under the prohibition of arbitrary detention under Art 5 of the European Convention which practically always will come into play in the expulsion cases. Eirik Bjorge agrees with Greenwood and Keith that the Court goes further than the international and regional human rights bodies. following from the legality requirement. 534. He advances a general prohibition of arbitrariness when rights are restricted. 19 E Bjorge. He concludes that ‘by developing international human rights in this way. A closer reading for instance of the case law of the European Court goes far to bearing this out. and it is difficult to imagine that any of these human rights bodies would do anything but gratefully adopt the view of the Court.against arbitrary expulsion does not only provide procedural rights but a substantive right. 8 . First. requiring the Court to review whether the expulsion was justified on its merits. such as the United Nations Human Rights Committee and the African Commission on Human and Peoples’ Rights.19 It is not surprising that members and staff of human rights bodies already has given Diallo much attention. 18 In the case note on Diallo in The American Journal of International Law. the due process requirements under Protocol 7 to the European Convention are set so high that there is no need for further substantive protection in any of the cases. The Court held that there had been violations of both procedural and substantive guarantees. ‘Case Concerning Ahmadou Sadio Diallo’. Article 13 ICCPR and the African Charter Article 12 require that an expulsion of an alien can only take place ‘in accordance with the law’. Judges Sir Christopher Greenwood and Sir Kenneth Keith in their Joint Declaration argued that this jurisprudence did not go beyond procedural guarantees. First. Second. domestic law must also be compatible with the other requirements of the Covenant and the African Charter. (2011) 105 The American Journal of International Law.

In the 20 Neither did it. Account had to be taken of the ‘number and seriousness of irregularities’ tainting them. This is left to further elaboration by the Court at some later occasion and by the human rights bodies the Court now relies so expressly on for its development of this part of international law. or if a contrary rule or instrument is invoked to bypass the rule. The Court. The Court did not accept that there were ‘compelling reasons of national security’ for an exception (para 74). and burden was on the state to show that this had been done (paras 72 and 84). even if other States breach the rule in question.consultation and the provision of reasons (para 73).’ The Court’s use of the words ‘even apart’ is a useful reminder that we are dealing with a rule of customary international law. moreover. and the decisions had not been ‘reasoned in a sufficiently precise way’ (para 82). Art 10 (treatment of detainees: with humanity and respect for dignity) and African Charter Art 5 (‘dignity inherent in a human being’). But in Diallo there was no normative conflict that would require the Court to address further the peremptory or jus cogens status or nature of the prohibition of inhuman and degrading treatment. that the prohibition of inhuman and degrading treatment is among the rules of general international law which are binding on States in all circumstances. The proceedings against Mr Diallo were not criminal but he still had right to be notified of reasons for arrest. then took this opportunity to state that ‘there is no doubt. 9 . require the Court to deal with the customary international law status of the prohibition. even apart from any treaty commitments. The Court also held there was a violation of Article 9 of the Covenant and of Article 6 of the African Charter against arbitrary detention. The Government had ‘made no attempt to ascertain whether his detention was necessary’. in the aftermath of the decade of ‘anti-terror’ measures. Again there were breaches of domestic procedures (including the forty-eight hours before going before a judge). The use of words of ‘in all circumstances’ can refer to a rule’s peremptory or jus cogens status in the sense of its unconditional applicability and lack of reciprocity. and of the right to be heard (para 74). Mr Diallo had been ‘held for a particularly long time’.20 The Court discussed the provisions of Art 7 ICCPR (against torture and degrading treatment). strictly speaking.

10 . The International Court could provide convincing support for breach of domestic law (no consultation and not sufficient reasons. Light and Power Company. Limited (Belgium v Spain). para 38. They were legal persons. Second Phase. and the International Court rejected the Congolese objections on grounds of failure to exhaust local remedies. The threshold for the review is that ‘a State puts forward a manifestly incorrect interpretation of its domestic law. The Court based this on Barcelona Traction. The Court also established a new evidentiary position for claims to succeed in human rights cases. Companies and Investor Rights: Barcelona Traction and legal personality Guinea could exercise diplomatic protection for Mr Diallo’s direct rights as a member of the private limited liability companies. in particular not when a party claims not to have been afforded procedural guarantees (para 55). especially when that interpretation is given by the highest national courts’. and separate from their shareholder and manager. 6. 162. The Court referred to the limits on its review of a state’s interpretation of own domestic law (para 70). the Court held that no breach of the prohibition of inhuman and degrading treatment ‘had been demonstrated’.event. Judgment of 20 April 2010. ICJ Reports 1970. and breach of the right to be heard. Judgment. Order of 20 December 1988. to interpret its own domestic law and the International Court will ‘not substitute its own interpretation for that of the national authorities. 158. 22 Barcelona Traction. para 74). It is for each State.22 In Elettronica Sicula23 the Chamber of the Court had applied the treaty protection developed in bilateral investment treaties for protection of shareholder claims for compensation for violations against a company (protection by 21 Pulp Mills on the River Uruguay (Argentina v Uruguay). 33-34. para. particularly for the purpose of gaining an advantage in a pending case’. Mr Diallo. The Court rejected in its 2007 Judgment on Preliminary Objections the claims held by companies owned by Mr Diallo or where he held a controlling position. formed and established in the Congo. 23 Elettronica Sicula SPA (ELSI) (United States of America v Italy). The burden of proof was placed on the claimant in Pulp Mills. in the first instance. ICJ Reports 1988. para 73.21 but this could not apply to human rights cases in general. The Court did not allow Guinea’s claim to extend its protection to the two limited liability companies.

Cambridge 2009) on the French (p 111) and Belgian (p 124) private companies that the Congolese system and terminology of company law builds upon. In the present case. leading to a discrepancy between the customary international law standard and the standard contained in most investment treaties. There is all reason to undertake reforms of different kinds to reduce delay. With the findings in the judgment these are limited to the detention and expulsion. The application was lodged in 1998. there could be good reasons to choose the former over the latter. and shareholders from many countries. shareholders of different nationalities were not a concern.substitution). 11 . The parties were given a short deadline to reach a settlement. With such delay. This left Mr Diallo’s direct rights as a member or as managing director of the private limited liability companies. Guinea also referred to ILC’s draft Articles on Diplomatic Protection and case law from various human rights bodies. But in Diallo the Court did not extend protection by substitution to a rule of customary international law. See M Andenas and F Wooldridge European Comparative Company Law (CUP. In the 2010 Judgment on Merits. the sole member. and the private limited liability company in the company law of the Congo. 7. They first of all pointed out that the Court in Barcelona Traction saw the need to attribute the diplomatic protection to one state. Judges Al-Khasawneh and Yusuf pointed out that the developments in the field of foreign investments have abandoned the distinction between the corporate personality of the company on the one hand. all the claims based on Mr Diallo’s direct claims failed. remedies can hardly be effective in a human rights case as this. The Court brought up the length of proceedings. and that of the shareholders on the other.24 The Joint dissenting opinion of Judges Al-Khasawneh and Yusuf revisited the Court’s reading of Barcelona Traction. With one country of incorporation or establishment determining the nationality of the company. as there was a single owner in Mr Diallo. paras 160-4). some 24 In both the 2007 Judgment on Preliminary Objections and the 2010 Judgment on Merits there is discussion of the managing director. Remedies Remedies were discussed under the heading ‘reparation’ (the term used in the text is ‘compensation’.

courts have increasing rates of citation of decisions by courts from other jurisdictions. Tom Bingham and the Transformation of the Law . or for that matter to academic scholarship. in M Andenas and D Fairgrieve (eds). 28 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. But most national. although the twenty-two years in the ICJ. Sources of Authority We now come to another development in international law of which Kurt Lipstein would have approved. The Court also cited the Committee on Economic. (Oxford University Press. The European Human Rights Court has an open practice. whereas the EU Court of Justice has been most closed and restrictive in this respect but now openly relies on judgments from the Human Rights Court. It must be recalled that both national and other international courts have considerable delays in human rights cases. and less appropriate where the fundamental rights of a private individual is involved.of which is due to the deference the International Court procedures show to state parties.26 It has for some time cited and relied on arbitral decisions. 5-23. Oxford 2009). M Andenas and D Fairgrieve. Advisory Opinion. The International Court placed clear reliance on the statements of the two UN committees in the interpretation of their respective 1966 UN Covenant. Social and Cultural Rights (CESCR. must be at the extreme end. 27 See the discussion in G Guillaume. 13. both its decisions in individual cases. and international. 12 . ICJ Reports 2004.27 In the Wall Case (2004)28 the International Court for the first time cited the UN Human Rights Committee (HRC). its ‘constant practice’ on extraterritorial application. Courts follow different practices when it comes to citation of other courts. see for a discussion of this development. the International Court cited both the Trial Chamber of the International 25 26 Individual judges have more freedom in their opinions that are appended to the judgments. Many national courts have treated law as a closed system and not cited international or foreign courts. International Court judgments25 have traditionally not referred to decisions by other courts. national or international. and relied in the determination of factual matters on the CESCR and the UN Special Human Rights Mandates or Rapporteurs. 8.A Liber Amicorum. para 112) and the UN Special Human Rights Mandates or Rapporteurs. and in some countries this remains a contested issue. starting some ten years after the end of the detention with the final expulsion. Then in Bosnia and Herzegovina v Serbia and Montenegro (2007). ’The Use of Precedent by International Courts and Arbitrators’. ‘“There is a World Elsewhere”—Lord Bingham and Comparative Law’. Journal of International Dispute Settlement (2011). 831. and its statements on the interpretation of the ICCPR at issue (para 109110).

London 2002).33 This is fully justified by the importance of achieving ‘the necessary clarity and the essential consistency of international law. see above. paras 8-11 and the cases of Kayishema. para 9. Judgment. It also cites the ICTY and the ICTR on the requirement of ‘substantiality’ in establishing intent Krstić. (Para 66). Serbia and Montenegro). (IT-95-16-T. 88 and 198. 32 This is one of their arguments in the discussion of a substantive protection against arbitrary expulsion.3. No.) The International Court also refers to the European Court of Human Rights in the context of accounting for the parties’ submissions but does not rely on or make any further use of these references. 31 Maroufidou v Sweden. it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty.’ Its conclusions are ‘corroborated’ by the ‘jurisprudence’ or ‘case law’ of the HRC.30 The International Court relies on the HRC’s jurisprudence. and on both the ICTY and the ICTR for the elements of the international criminal offences. the multiplicity of sources reflects the nature of public international law as an open system. including Maroufidou v Sweden31 with Sir Christopher Greenwood and Sir Kenneth Keith disagreeing in the interpretation. para. Byilishema. IT-98-33-A. Appeals Chamber Judgment. Here the International Court cites and relies on the ICTY on the intent required for the crime of genocide in Kupreškić et al. Though the International Court is in no way obliged in the exercise of its judicial functions to model its own ´interpretation of the Covenant on that of the Committee. ICJ Reports 2007 p 9. The Court will ‘take due account of the interpretation of … independent bodies … created … to monitor’ the human rights treaties. para 636. General Comment No 15: The position of aliens under the Covenant 13 .Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).29 The International Court ‘found itself unable to subscribe to the view expressed’ by the ICTY on state responsibility (para 403).32 The International Court also refers to General Comment No. 33 Human Rights Committee. as well as legal security. 30 See the issues formulated in J Crawford’s opening essay ’International Law as an Open System’ in his collected essays International Law as an Open System (CMP. Congo had ratified the African Charter on Human and Peoples' Rights so it followed that the practice of the African Commission on Human and Peoples' Rights 29 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. 14 January 2000. In Diallo. but relied on the ICTY for its findings of facts. and Semanza. to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled’. 15. 58/1979. 19 April 2004.

/CCPR/C/101/D/1410/2005. and this is reflected in their decisions and general comments. The International Court would not have invented the requirements of ‘effective nationality’ and ‘a meaningful connection’ to the relevant state as it did under strong pressure from the victors of the second world war. and the International Court will certainly influence this development. 36 G Guillaume. Interafrican Union for Human Rights v Rwanda . State sovereignty: while states themselves decided on the law of citizenship. No 27/89. In Nottebohm. But here too the system of citations is opening up. para 204.03.) It did not necessarily follow that the International Court should make any use of the jurisprudence of the Inter-American Court of Human Rights or the European Court of Human Rights. Seen from the vantage point of the ICJ. In the secretariats of the different UN human rights bodies there are different views on this.36 they would be regional mechanisms. which was ‘consistent’ with the International Court’s own findings (para 68). See already the HRC in Yevdokimov & Rezanov v Russian Federation. The International Court’s Registrar would previously informally advise judges that ‘the Court does not cite regional courts in their judgments’. the International Court used all the tools at hand. The International Court took the opposite starting point in dealing with the regional. It found further support in the case law of the Inter-American and European Courts. International Commission of Jurists. 99/93. at 19. The majority used evidence: a high 34 35 Kenneth Good v Republic of Botswana.37 9. No 313/05. and the International Court cites Kenneth Good34 and World Organization against Torture v Rwanda. with Sir Christopher Greenwood and Sir Kenneth Keith disagreeing in the interpretation of the case law. 37 Again. ’The Use of Precedent by International Courts and Arbitrators’. World Organization against Torture and International Association of Democratic Lawyers.35 (Para 67. states that the International Court ’always abstained itself from the smallest reference to the rationales employed by the r egional jurisdictions’. and there may be opposition from countries from outside their jurisdiction. Conclusions: from Nottebohm to Diallo Kurt Lipstein would have won Nottebohm for Lichtenstein had it been decided today. 20. 14 .was relevant. 46/91. Journal of International Dispute Settlement (2011). other states’ sovereignty give them the right to refuse recognition if there was no ‘effective nationality’ or ‘meaningful connection’. 5-23. which adopts the European Court's jurisprudence on prisoners' voting rights in the interpretation of the ICCPR. These countries had strong economic interests in not to open up other fora of review for many war–time confiscations.04. 49/91.

which was not well received. They did not accept the requirements of ‘effective nationality’ or ‘meaningful connection’. and a new system of international human rights protection included a number of courts and other international bodies. usually sharing a compulsory jurisdiction.nyu. New York University School of Law. See http://www. Guillaume. or the many other individuals in similar cases.law.H. A judge and subsequent President of the International Court. and they all three made clear and unconditional findings also on the factual issues. This is clearly brought out by the passage from Judge Read’s dissent which is reproduced in the first section of this article including his view on the outcome of the majority’s decision: ’justice would not be done on any plane.40 This proposal. 9 November 2005. the Universal Declaration of Human Rights of 1948 had taken effect through human rights treaties. Gilbert Guillaume. it is accepted that genuine-link has to exist in order to exercise the right of diplomatic protection. He added. Weiler in the Hauser Global Law School Program. and then went on to make findings of facts in favour of Lichtenstein. The majority kept its considerations at the inter-state level: their focus was not the consequences for the individual in this case. (1995) 44 ICLQ 848. illustrates the concern among some international lawyers that the International Court may be side–lined by the WTO Appellate Body. had voiced concern over the proliferation of international courts and tribunals more generally and suggested that references on points of international law may be made from other international courts to the International Courts. It was the interests of the states not wanting review of their confiscations that was given weight. Conversation with J.’38 The three judges in the minority had a very different emphasis. in a sense. 4 at 35. 40 G. Judge Owada has pointed out that the genuine-link theory had never been mentioned in the textbooks before the Nottebohm case was decided. and other trade and human rights bodies. Guatemala. 'The future of international judicial institutions'.J. 38 ‘To Be an International Court Judge: A Conversation with Hisashi Owada. 1955 I. if you like to call it. national or international’. dissenting opinion of Judge Read.H. which would satisfy even these higher requirements.evidential threshold allowed a finding against Lichtenstein.C. Judge at the International Court of Justice. judicial legislation.39 The three dissenting judges included the International Court’s subsequent President.’now. But that was. Before Diallo had reached the International Court. 15 . Helge Klaestad.edu/global/eventsandnews/distinguishedfellowslectureseries/ECM_DLV_015735 39 Lichtenstein v.

available at http://www. Judgment. Diallo in 2010 and Georgia v Russia41 in 2011 illustrate a gradual development. points towards further lowering of the barriers of state consent when jurisdictional clauses are interpreted. and the limits to the transformation in the International Court’s approach to jurisdiction this far. Hisashi Owada.pdf?PHPSESSID=5c407 (accessed 15 April 2011). But the argument in the latter case as well. The first feature of this transformation of public international law is in the relaxation of the restrictions of state consent. The Intenational Courtpractically split down the middle with President Owada. it becomes much clearer how the open method the International Court has adopted. ICJ Rep 2001. enter into negotiations with Russia over its claims under the CERD. 46 has been generally received by other international bodies with adjudicative functions. and also a cautious majority. and the development of erga omnes. by underlining the importance of the recognition of the Court’s compulsory jurisdiction: ’It is the inter -connected web of optional clause declarations and compromissory clauses which create a foundation upon which the Court can develop a continuous jurisdiction that does not have to be re-established with each new dispute as does jurisdiction by special agreement. The International Court concluded that it lacked jurisdiction under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) because. In the latter case the majority of the Court rejected the claim with reference to the requirement of exhausting the treaty procedures that Georgia had not followed.43 as in Diallo. Judges Simma. The law of the International Court is no longer predominantly on the jurisdictional issues: it is concerned with substantive law.42 Other features are the International Court’s confirmation of customary international law in different areas of law. 16 . Georgia was required.org/presscom/files/5/16225. The Court has provided itself with the tools to contribute to some level of unity and coherence of international law. the International Court’s jurisprudence on the binding character of provisional measures following LaGrand (Germany v United States of America). jus 41 The Judgment on the preliminary objections to jurisdiction raised by the Russian Federation on 1 April 2011 on the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) shows how the current disagreement in international law divides the International Court judges. both by a strong minority. also outside the traditional core public international law discipline.icjcij. puts it at the top of the international law system.’ 43 In the core discipline.In Diallo. The development of customary international law by the International Court is now more likely to include human rights law. concluded his remarks to the UN group of government legal advisers at the Seminar on the Contentious Jurisdiction of the International Court of Justice on 26 October 2010. The outcome will be the gradual strengthening of the International Court’s contentious jurisdiction. 42 The current International Court President. in the Court’s view. but had failed to. international trade law and other fields of international law which until recently seemed to fragment into autonomous regimes. Abraham and Donoghue and Judge ad hoc Gaja disagreeing.

which itself now moves across the boundaries that divide the law. See also the precise analysis in P Daillier. by this method. these tribunals are very attentive to the jurisprudence of the Court. Oxford 2011). adds in ’The Use of Precedent by International Courts and Arbitrators’. This more narrow view of the role of the International Court illustrates how radical a departure from previous doctrine that is taken in the new case law that Diallo contributes to. allowing him to combine arguments from different national traditions and disciplines within national and international law. A Orakhelashvili Peremptory Norms in International Law (OUP. This can be contrasted with the views of the current President. in particular. International courts and other bodies are increasingly provided with the tools of applying international law and securing coherence and unity. primarily in border disputes. see. ’The Distinction between Jus Cogens and Obligations Erga Omnes’. and among the articles in E Cannizzaro (ed) The Law of Treaties Beyond the Vienna Convention (OUP. 44 Spurring a considerable literature. see fn 40 above. 5 -23. is yet another. at 411. The provisions about erga omnes and peremptory norms in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts by the International Law Commission brings the gradual development of the law further forward. that ’the Court’s policy of precedent essentially aims to assure a constructive dialogue with arbitration tribunals dealing with interstate disputes. Journal of International Dispute Settlement (2011). and E Cannizzaro ’A Higher Law for Treaties?’ at 425. Droit International Public. M Forteau and A Pellet. The citation of other courts and international bodies is another feature opening up for a dialogue across treaty regimes and other jurisdictions. 45 The former President of the ICJ at the time of writing. Not only would Kurt Lipstein would have felt more at ease in today's ICJ. Paris 2009. G Guillaume. LGDJ.45 The other courts and international bodies in this relationship may respond by taking a more close account of international law and its fundamental principles in applying the treaty base they may have for their activities. For their part. Oxford 2006). in recognition of the court decisions. The recognition of jus cogens by arbitral tribunals and international courts before the International Court itself did so in Congo v Rwanda. 17 . P Picone.44 The provisions about peremptory norms in the 1969 Vienna Convention (in articles 53 and 64) have played a role in some states withholding their ratification. at 20. The objections against jus cogens by countries as France and Norway have in practice been withdrawn. and with the International Court having this as its main business. coherence is satisfactorily assured in those matters’.cogens and peremptory norms. He would also have won the case for Mr Nottebohm and Lichtenstein.

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