AERIAL INCIDENT OF 27 JULY 1995

(U.S. v. BULGARIA)
1960 ICJ 146
This case arose out of the destruction by Bulgarian anti-aircraft defense forces of an
aircraft belonging to an Israeli airline. All fifty one passengers and seven crew members aboard
were killed, including six Americal nationals Israel instituted proceedings before the ourt by
means of an Application in !ctober "#$%. Bulgaria having challenged the ourt&s 'urisdiction to
deal with the claim, Israel contended that, since Bulgaria had in "#(" accepted the compulsory
'urisdiction of the )ermanent ourt of International *ustice for an unlimited period, that
acceptance became applicable, when Bulgaria was admitted to the +nited ,ations in "#$$, to the
'urisdiction of the International ourt of *ustice by virtue of Article -., paragraph $, of the
present ourt&s /tatute, which provides that declarations made under the /tatute of the )I* and
which are still in force shall be deemed, as between the parties to the present ourt&s /tatute, to
be acceptances applicable to the International ourt of *ustice for the period which they still
have to run and in accordance with their terms.
The issue is whether or not Bulgaria has 'urisdiction over the case.
its *udgment on the preliminary ob'ections, delivered on (. 0ay "#$#, the ourt found
that it was without 'urisdiction on the ground that Article -., paragraph $, was intended to
preserve only declarations in force as between /tates signatories of the +nited ,ations harter,
and not subse1uently to revive undertakings which had lapsed on the dissolution of the )I*.
In order to find the basis for the 'urisdiction of the ourt, the 2overnment of Israel
invoked the 3eclaration of acceptance of compulsory 'urisdiction signed by Bulgaria in "#(", at
the same time as )rotocol of /ignature of the /tatute of the )ermanent ourt of International
*ustice, and Article -., paragraph $, of the /tatute of the International ourt of *ustice, which
reads as follows4
53eclarations made under Article -. of the /tatute of the )ermanent ourt of
International *ustice and which are skill in force shall be deemed, as between the parties to the
present /tatute, to be acceptances of the compulsory 'urisdiction of the International ourt of
*ustice for the period which they still have to run and in accordance with their terms.5
CASE CONCERNING EAST TIMOR
(!"#$%&' v. A$(#"&')&)

6ast Timor is at the eastern part of the island of Timor7 it includes the island of Atauro, ($
kilometers to the north. In the sixteenth century, 6ast Timor became a colony of )ortugal which
remained there until "#%$. The western part of the island came under the 3utch rule and later
became part of independent Indonesia.
In resolution "$8( 9:;< of "$ 3ecember "#.=, the +nited ,ation 2eneral Assembly
stated that 6ast Timor is a non-self-governing territory within the meaning of the charter and it
considered the territory under the administration of )ortugal. )ortugal accepted this position in
"#%8. In August "#%$, following internal disturbance in 6ast Timor, the )ortuguese civil and
military authorities withdrew from the mainland of 6ast Timor to the island of Atauro. !n
3ecember %, "#%$, the armed forces of Indonesia intervened in 6ast Timor and the following
day, the )ortuguese left Atauro and 6ast Timor altogether. /ince their departure, Indonesia has
occupied the Territory, and the parties acknowledge that the Territory has remained under the
effective control of the /tate. Asserting that on -" 0ay "#%. the people of 6ast Timor had
re1uested Indonesia >to accept 6ast Timor as an integrated part of the ?epublic of Indonesia@, on
"% *uly "#%. Indonesia enacted a law incorporating the territory as part of its national territory.
!n 3ecember "#%., the /ecurity ouncil in a resolution called upon al states to respect
the territorial integrity of 6ast Timor as well as the inalienable right of its people to self-
determination. It also recogniAed )ortugal as the administering power of 6ast Timor.
The incorporation of 6ast Timor as part of Indonesia was recogniAed de facto on (=
*anuary "#%B. This was followed by a negotiation between Australia and Indonesia about the
delimitation of the continental shelf between the Australia and 6ast Timor. This did not come
into fruition, so, instead a treaty was concluded about a provisional arrangement for a 'oint
exploration and exploitation of the resources of the said area.
In the present case, )ortugal alleges that Australia failed to respect the duties and right of
)ortugal as administering power of 6ast Timor and that it failed to respect the right to self
determination of the people of 6ast Timor. Australia, on the other hand contends that the present
case would re1uire the court to rule on the rights and obligation of a state not a party to the
proceeding, namely Indonesia.
The issue is whether or not the I* can rule on the rights and obligation of a state not a
party to a proceeding.
In the present case, the ourt notes that )ortugalCs claim that in entering into a Treaty
with Indonesia, Australia violated the obligation to respect )ortugalCs status as administering
)ower and that of 6ast Timor as a non-self-governing territory, is based on the assertion that
)ortugal alone, in its capacity as administering )ower, had the power to enter into the Treaty on
behalf of 6ast Timor.
The last resolution of the /ecurity ouncil on 6ast Timor goes back to "#%. and the last
resolution of the 2eneral Assembly to "#B(. )ortugal takes no account of the passage of time and
the development that have taken place since then. The /ecurity ouncil resolutions are not
resolutions which are binding under hapter ;II of the charter or otherwise, moreover they are
not framed in mandatory terms.
The ourt considered that the erga omnes character of a norm and the rule of consent to
'urisdiction are two different things. Dhatever the nature of the obligations invoked, the ourt
could not rule on the lawfulness of the conduct of a /tate when its 'udgment would imply an
evaluation of the lawfulness of the conduct of another /tate which is not a party to the case.
Dhere this is so, the ourt cannot act, even if the right in 1uestion is a right erga omnes.
NICARAGUA * UNITED STATES
I.C.J. +92
The ourt observes that it ought not to indicate provisional measures unless the
provisions invoked by the Applicant appear, prima facie, to afford a basis on which its
'urisdiction might be founded. It does not now have to determine the validity or invalidity of the
declaration of ,icaragua of (8 "#(# and, the 1uestion whether or not ,icaragua could does rely
on the +nited /tates 3eclaration of ". "#8., or the 1uestion whether , as a result of the
declaration of . April "#B8, the Application is excluded as from this date from the scope of the
+nited /tates acceptance of the compulsory 'urisdiction of the ourt. It finds that the
declarations deposited by the two )arties respectively in "#(# and in "#8. nevertheless appear to
afford a basis on which the 'urisdiction of the ourt might be founded.
)rovisional 0easures
The !rder sets out the circumstances alleged by ,icaragua as re1uiring the indication of
provisional measures, and the material it has provided to support its allegations. The
2overnment of the +nited /tates has stated that the +nited /tates does not intend to engage in a
debate concerning the facts alleged by ,icaragua, given the absence of 'urisdiction, but it has
admitted no factual allegations by ,icaragua whatever. The ourt had available to it
considerable information concerning the facts of the present case, including of official statements
of +nited /tates authorities, and has to consider whether the circumstances drawn to its attention
re1uire the indication of provisional measures, but it makes it clear that the right of the
respondent to dispute the fats alleged must remain unaffected by its decision.
After setting out the rights which, according to ,icaragua, should be urgently protected
by the indication of provisional measures, the ourt considers three ob'ections raised by the
+nited /tates 9in addition to the ob'ection relating to 'urisdiction< against the indication of such
measures.
Eirst, the indication of provisional measures would interfere with the negotiations being
conducted in the context of the work of the ontadora 2roup, and would directly involve the
rights and interests of /tates not )arties to this ase7 secondly, these negotiations constituted a
regional process within which ,icaragua is under a good faith obligation to negotiate, thirdly, the
Application by ,icaragua raises issues which should more properly be committed to resolution
by the political organs of the +nited ,ations and of !rganiAation of American /tates.
,icaragua disputes the relevance to this case of the ontadora process in which it is
actively participating7 denies that its claims could pre'udice the rights of other /tates, and recalls
previous decisions of the ourt, by virtue which, in its opinion, the ourt is not re1uired to
decline to undertake an essentially 'udicial task merely because the 1uestion before it is
intertwined with political 1uestions.
The ourt finds that the circumstances re1uire that it should indicate provisional
measures, as provided by Article 8" of the /tatute, in order to preserve the rights claims. It
emphasiAes that its decision in no way pre'udges the 1uestion of its 'urisdiction to deal with the
merits of the case and leaves unaffected the right of the 2overnment of the +nited /tates and of
the 2overnment of ,icaragua to submit arguments in respect of such 'urisdiction or such merits.
Eor these reasons, the ourt renders the following decisions4
?e'ects the re1uest made by the +nited /tates of America that the proceedings on the
Application filed by the ?epublic of ,icaragua on # "#B8, and on the re1uest filed the
same day by the ?epublic of ,icaragua for the indication of provisional measures, be
terminated by the removal of the case from the list7
)ending its final decision in the proceedings instituted on # April "#B8 by the ?epublic of
,icaragua against the +nited /tates of America, the following provisional measures4
The +nited /tates of America should immediately cease and refrain from any action
restricting, blocking or endangering access to or from ,icaraguan ports, and, in
particular, the laying of mines7
The right to sovereignty and to political independence possessed by the ?epublic of
,icaragua, like any other /tate of the region or of the world, should be fully respected
and should not in any way be 'eopardiAed by any military and paramilitary activities
which are prohibited by the principles of international law, in particular the principle that
/tates should refrain in their international relations from the threat or use of force against
the territorial integrity or the political independence of any /tate, and the principle
concerning the duty not to intervene in matters within the domestic 'urisdiction of a /tate,
principles embodied in the +nited ,ations harter and the harter of the !rganiAation of
American /tates.
The 2overnment of the +nited /tates of America and the ?epublic of ,icaragua should
each of them ensure that no action is taken which might pre'udice the rights of the other
)arty in respect of the carrying out of whatever decision the ourt may render in the case.
3ecides further that, until the ourt delivers its final 'udgment in the present case, it
will keep the matters covered by this !rder continuously under review.
3ecides that the written proceedings shall first be addressed to the 1uestions of the
'urisdiction of the ourt to entertain the dispute and of the admissibility of the
Application and reserves the fixing of the time-limits for the said written proceedings,
and the subse1uent procedure for further decision.
EL SAL*ADOR * ,ONDURAS
N)-&"&%$& I.#/"v/.#)!.
1992 ICJ R/0!"#(
There is a land, Island and maritime frontier dispute between 6l /alvador and Fonduras.
+nfortunately, the said sub'ect of the dispute includes the 2ulf of Eonesca, over which, the
?epublic of ,icaragua has rights to be protected on the said 2ulf. +pon knowing the case,
,icaragua filed an application for permission to intervene in the dispute between 6l /alvador and
Fonduras. The grounds for the filing are4
". To protect the legal rights of the ?epublic of ,icaragua in the 2ulf of Eonesca and the
ad'acent maritime areas by all legal means available.
(. To intervene in the proceedings in order to inform the court of the nature of the legal
rights of ,icaragua which are in issue in the dispute.
,icaragua filed this Application in ?elation to Article .( which states that >/hould a state
consider it has an interest which may be affected by the decision in the case, it may submit a
re1uest to the court to be permitted to intervene@ and Article B", par.( which states >/tates
seeking to intervene is re1uired to specify the case to which it relates and to set out4
a. The interest of a legal nature which the state applying to intervene considers maybe
affected by the decision in that case7
b. The precise ob'ect of intervention7
c. Any basis of 'urisdiction of 'urisdiction which is claimed to exist as between the state
applying to intervene and the parties to the case7
The court initially granted the application of ,icaragua. 6l /alvador contested the
application because it argued that ,icaragua failed to present a >valid link of 'urisdiction@ as
re1uire in Art.B", par.(.
Is there a need for ,icaragua to show a >valid link of 'urisdiction@ to intervene in the
caseG
The court held that ,icaragua does not need to show a >valid link of 'urisdiction@
because it will only play as an intervenor. It wants only to ensure that its right will not be
pre'udiced by the decision of the court. It only wants to inform the court about its rights in the
2ulf of Eonesca. It would be different if ,icaragua would be a third party in the case which will
not 'ust be given the right to be heard but also to present its claims against the parties. If thatCs
the case, the need of a >valid link of 'urisdiction@ is needed.
The rights of ,icaragua as an intervenor would be limited to the right to be heard, nothing more,
nothing less.