Tuesday, April 24, 2012

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) case brief

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda)


Procedural History:
Proceeding in the International Court ofJustice.

Overview:

The Democratic Republic of the Congo (P) brought an application against Rwanda (D), and Rwanda (D) challenged the jurisdiction of the International Court of Justice.   The Democratic Republic of the Congo (DRC) (P) brought an application against Rwanda (D). 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. Rwanda (D) was not party to two of the treaties, and with respect to the other seven, Rwanda (D) excluded dispute settlement obligations. Rwanda (D) challenged the jurisdiction of the International Court of justice on the nature of its obligations. The excerpt omits discussion of some of the treaties. The treaties involved were Genocide Convention, Article IX; Convention on Racial Discrimination, Article 22; Convention on Discrimination against Women, Article 29; World  Health Organization Constitution, Article 75; Unesco Convention, Article XIV; Montreal Convention, Article 14;  Vienna Convention, Article 66; Convention Against Torture; and Convention on Privileges and Immunities of  the Specialized Agencies. Rwanda (D) was not party to the last two.

Issue:

Where one party to 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, does the International Court of justice lack jurisdiction based on that treaty?

Rule:

where one party to 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, the ICJ lacks jurisdiction based on that treaty.

Analysis:

The Court’s analysis of all treaties involved was similar to that included in the casebook excerpt. The main principle here is that where a state has apparently not granted consent to the jurisdiction of the I.C.J., the I.CJ. will not advance the case past the preliminary matter of jurisdiction, whatever atrocities have in fact been committed by the non-consenting state. Additionally, where, as here. there is evidence of non-consent reversal of the position requires an overt act by the state, in order to convince the Court that after all. consent to the I.C.J.’s jurisdiction was granted.

Outcome:

Yes. Where one party to 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, the International Court of Justice lacks jurisdiction based on that treaty. First, Rwanda (D) may have committed itself at the time of a 1993 peace agreement to withdrawing all reservations to human rights treaties, and the Rwanda (D) minister of justice effectuated the withdrawal, but Rwanda (D) never took formal acts to bring about withdrawal of the reservation. A decision to withdraw a reservation within a state’s  domestic legal order is not the same as implementation of that decision by the national authorities within the international legal order, which can only occur by notification to the other state parties to the treaty in question through the Secretary-General of the United Nations. Second, the existence of a dispute that implicates peremptory norms of general international law is not an  exception to the principle that jurisdiction always depends on the consent of parties. The DRC (P) may have made numerous protests against Rwanda’s (D) actions at the bilateral and multilateral levels, and therefore satisfied pre· conditions to the seisin of the LC.j. in the compromissory clauses within some of the treaties, including the Conven· tion on Discrimination against Women, but whatever the  dispute, there was no evidence that the DRC (P) sought negotiations with respect to interpretation or application of the Convention. The DRC (P) also failed to show that it initiated arbitration proceedings with Rwanda (D) under the Convention on Discrimination against Women. The  treaty cannot therefore form the basis of jurisdiction.

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