ARMED ACTIVITIES ON THE

TERRITORY OF THE CONGO

(Democratic Republic of the
Congo vs Rwanda) (2006)
Brief Fact Summary. Rwanda (D)
challenged the jurisdiction of the
International Court of Justice when a
suit was filed against her by the
Democratic Republic of the Congo (P).
Synopsis of Rule of Law. The
International Court of Justice lacks
jurisdiction based on a treaty in which
one party to such a treaty excludes
dispute settlement obligations under
the treaty before becoming a party,
and fails to take formal acts to bring
about withdrawal of the reservation.
Facts. In the suit filed by the Republic
of the Congo (DRC) (P) against
Rwanda (D), the DRC (P) tried to base
the jurisdiction of the International
Court of Justice on nine treaties with
dispute settlement clauses that
provided for such jurisdiction. Of the
nine treaties, Rwanda (D) excluded
dispute settlement obligations in
seven of the treaties while it was not
party to the remaining two. Based on
the nature of its obligations, Rwanda
(D) challenged the jurisdiction of the
International Court of Justice.
Discussions of some of the treaties
were omitted by the excerpt. The
treaties involved were Convention on
Privileges, Immunities of the
Specialized Agencies, Genocide
Convention, Article IX, Convention on
Racial Discrimination against Women,
Article 29, World Health Organization
Constitution, Article 75. Unesco
Convention, Article XIV, Montreal
Convention, Article 14, Vienna
Convention, Article 66 and Convention
Against Torture. Rwanda (D) was not
party to the first two treaties.

Issue. Does the International Court of

Justice lacks jurisdiction based on a
treaty in which one party to such a
treaty excludes disputes settlement
obligations under the treaty before
becoming a party and fails to make
formal acts to bring about withdrawal
of the reservation?
Held.
(Judge not stated in casebook excerpt)
Yes. The International Court of Justice
lacks jurisdiction based on a treaty in
which one party to such a treaty
excludes dispute settlement
obligations under the treaty before
becoming a party and fails to take
formal acts to bring about withdrawal
of the reservation.
Firstly as at the time of a 1993 peace
agreement to withdrawing all
reservations to human rights treaties,
Rwanda (D) may have committed
itself, though this withdrawal was
effectuated by the Rwanda (D)
minister of justice, Rwanda (D) never
for once take formal acts to bring
about withdrawal of reservation.
Deciding on whether to withdraw
reservation with a states domestic
legal order is not the same as
implementation of that decision by the
national authorities within the
international legal order, which can
only come to pass by notification to
the other state parties to the parties in
question through the SecretaryGeneral of the United Nations.
Secondly, the existence of a dispute
that implicates peremptory norms of
general international law does not
imply that it is not part of the
principles that jurisdiction always
relies on the consent of the parties.
The treaty was however held not to
form the basis of jurisdiction because

the DRC (P) failed to prove beyond

reasonable doubt that it initiated
arbitration proceedings against
Rwanda (D) under the Convention on
Discrimination against Women.
Discussion. The analysis of the
treaties in the casebook excerpt is
similar to the Courts analysis of
treaties. The main principle here is
that the I.C.J will not advance the case
past the preliminary matter of
jurisdiction where a state has not
granted consent to the I.C.Js
jurisdiction, whatever atrocities have
in fact been committed by the nonconsenting state. Also, reversal of the
position requires an overt act by the
state in a situation like this, where
there is evidence of non-consent, in
order to convince the Court that after
all, consent to the I.C.Js jurisdiction
was granted
GENOCIDE CONVENTION CASE
(Bosnia and Herzegovina vs.
Yugoslavia) (1996)
Brief Fact Summary. Bosnia and
Herzegovina (P) brought suit against
the Federal Republic of Yugoslavia
(Serbia and Montenegro) (D) in the
International Court of Justice in 1993,
on the grounds of violations of the
Convention on the Prevention and
Punishment of the Crime of Genocide.
Synopsis of Rule of Law. Under
International law, the conduct of any
state organ is to be considered an act
of the state, therefore giving rise to
the responsibility of the state if the
conduct constitutes a breach of an
international obligation of the state.
Facts. The republics of Bosnia and
Herzegovina (P), Croatia, Macedonia
and Slovenia declared independence
when the Socialist Federal Republic of

Yugoslavia began to break up in the

early 1990s. this led Serbia and
Montenegro to declare themselves the
Federal Republic of Yugoslavia (FRY)
(D). A massacre was perpetrated by
Serbian forces on 8000 Bosnia Muslim
men of fighting age in a small village
called Srebrenica in July 1995 during
armed conflicts that arose in 19921995 within Bosnia and Herzegovina
(P). A suit was filed against the FRY
(Serbia and Montenegro) (D) by Bosnia
and Herzegovina (P) in 1993 in the
International Court of Justice, claiming
violations of the Convention on the
Prevention and Punishment of the
Crime of Genocide, on the theory that
the FRY (D) was responsible for the
actions of Serbian forces.
Issue. Under International law, is the
conduct if any state organ considered
an act of the state, which can give rise
to the responsibility of the state if the
conduct constitutes a breach of an
international obligation of the state?
Held. (Judge not identified in
casebook excerpt). Yes. Under
International law, the conduct of any
state organ is to be considered an act
of the state, therefore giving rise to
the responsibility of the state if the
conduct constitutes a breach of an
international obligation of the state.
This is a rule of customary
international law that was codified in
Article 4 of the ILC Articles of State
responsibility.
No evidence showed that the Serbian
forces were de jure organs of FRY (D)
and this case did not show that the
army of the FRY (D) took part in the
massacres or that the political leaders
of the state had any part of it. Though
the FRY (D) was providing some
sought of financial and other support

to the Serbian forces, this does not

automatically make them organs of
the FRY (D).
Also, no evidence was provided to
prove that the Serbs were under the
effective control of FRY (D) while
conducting the massacre at
Srebrenica. This can only imply that
those who were responsible for the
massacre were not organs of the FRY
(D) and the FRY (D) cannot take
responsibility under international law
for the massacres.
Discussion. The brief for the first part
of this case, interpreting the
requirements of the Genocide
Convention, which is excerpted on
page 166 of the casebook, should be
looked into. The I.C.J. had to refer to a
standard set by Nicaraguan v. United
States in deciding whether to hold FRY
(D) liable for the alleged genocide at
Srebrenica by certain Bosnian Serbs,
in which the United States was found
not to be legally responsible for the
actions of the Contra guerrillas,
despite their common goal and pubic
support.

BARCELONA TRACTION, LIGHT

AND POWER COMPANY (1962)
Brief Fact Summary. Belgium (P)
claimed Spain (D) should be held
accountable for the injury to a
Canadian corporation operating in
Spain.
Synopsis of Rule of Law. A state
assumes an obligation concerning the
treatment of foreign investments
based on general international law,
once the state admits foreign

investments or foreign nationals into

its territory.
Facts. On behalf of Belgian nationals
(P) who had invested in a Canadian
corporation, Belgium (P) sued Spain
(D) on the premise that Spain (D) was
responsible for acts in violation of
international law that had caused
injury to the Canadian corporation and
its Belgian shareholders (P).
Issue. Does a state assumes an
obligation concerning the treatment of
foreign investments based on general
international law, once the state
admits foreign investments or foreign
nationals into its territory?
Held. Yes. A state assumes an
obligation concerning the treatment of
foreign investments based on general
international law, once the state
admits foreign investments or foreign
nationals into its territory. It is highly
imperative to draw a distinction
between those obligations of a state
toward the international community as
a whole and those arising from the
field of diplomatic protection. It is only
the party to whom an international
obligation is due can bring a claim if a
breach of an obligation that is the
subject of diplomatic protection
occurs.
Discussion. The basic right of all
human persons was mentioned by the
Court to be protected against slavery
and racial discrimination as deriving
from basic general international law.
Such rights may derive from
international instruments of a
universal or quasi-universal character.
Such obligations are obligations erga
omnes, that is, all states have a legal
interest in their protection.